24 Vt. 312 | Vt. | 1852
The opinion of the court was delivered by
Several questions have been raised in this case both on exception's taken on the trial, and on a motion in arrest.
The statute upon which this information has been filed, provides, “ that any person, who shall deal in the selling of distilled “ spirituous liquors, and in quantities of one pint or more, and less “ than twenty gallons, shall be deemed a retailer, &c.”
It is objected, that this information does not charge the respondent, as being a dealer in the selling of spirituous liquors, but simply, that on specific occasions, he -made such sales, for which this complaint is filed. This objection goes upon the ground, that the words in the act “ deal in the selling,” refer to the case of a regular and continued business and employment on the part of the respondent. Whereas, the information sets forth simple acts of selling, without having any connection with its being his regular and continual employment. This objection must be considered as overruled in the case of State v. Bugbee, 22 Vt. 32. Where the court held, that a single act of selling constituted an offense under the act. The objection, also, that the quantity sold, is set in the different counts, in figures, rather than words, must be considered as overruled in the case of Clark v. Stoughton et al., 18 Vt. 50.
We think, also, the objection cannot prevail, that the proof of sale under each count, must be confined to the specified quantity as there stated. It is sufficient if the information sets forth the offense, in the words of the act, and any greater particularity is unnecessary, and so is consequently a greater particularity in the proof. It was sufficient to prove the offense under each count, as specific only, as it is necessary it should be stated, and evidence that the respondent sold distilled spirituous liquors, in quantities of one pint or more, and less than twenty gallons, was all that is required.
And it is urged, that the jury, in cases of this character, are judges of the law and fact, and tha't under this charge, that right was taken from the jury. In criminal cases it is the duty of the court to aid and instruct the jury, and decide upon the law arising in the case. But the jury are the ultimate judges of both the law and fact, and this right cannot be taken from them.
To make this objection available however, it must appear affirmatively in the exceptions, that error exists, for every reasonable intendment will be made in favor of the charge of the court. If it appeared, that the court were requested to charge or inform the jury that they were judges of the law and fact, and that the court neglected or refused so to do, and directed them, as to the verdict they were to bring in, the exceptions would have been well taken. But as the matter now rests, that direction in the choice of the court, must be considered as an expression simply of his opinion of the law in the case, and which it was his duty to give, and as informing the jury, that it was their duty, to return such a verdict, without in any way controverting their ultimate right of exercising their own. judgment in the* case. For the want of positive error, affirmatively appearing in the exceptions, this objection is overruled. As is also the objection, that each page in the information is not signed by the informing officer.
The information being signed at the close of the last count, on the last page-, and the different pages being connected together, as. they are, we dieem the information sufficient.
We think, however, the judgment must be arrested on the 6th count. And also the' 84th — the 6th is held insufficient for being illegible; and the 84th, as not specifying the time when the of-fence took place — and that the respondent take nothing by his exceptions and motion in arrest, as to the remainder' of the counts on which he was convicted.