22 Vt. 74 | Vt. | 1849
The opinion of the court was delivered by
This is an indictment against the respondent for a violation of the license laws, in three counts; and the only question argued is, was it error in the county court to permit the government, after having given evidence tending to prove a sale at three different times, to prove a sale at any other time ? We think not. It might have been the case, and probably was, that the attorney for the government had failed, in the first instance, to make out a fair prima facie case upon all the counts in the indictment, if upon any, —especially as, in the .end, a .conviction was had only upon two of the counts; and this supposition is consistent with the bill of exceptions, which stated, that after having given evidence tending to prove, &c.
It was claimed, that the government had made their election, for what sales they would proceed, the moment they had introduced any
It is said in argument, that if the course of trial adopted by the county court is sustained, the respondent may be convicted for an offence, for which he was not indicted. This may be so ; and it does not follow, that it might not have been so, if a conviction had been had for any of the sales, which the prosecutor first attempted to prove. We have no means of knowing, which were the precise sales proved before the grand jury, and upon which the indictment was found.
It has also been said, that it was error in the county court to permit the prosecutor to attempt to prove more than three distinct sales, because, upon conviction, the record could not be pleaded in bar to an indictment for a sale prior to the finding of the present
The constitutional question in relation to the license laws, saved by this bill of exceptions, having been decided in a previous case, and being now waived, we need take no time with it. It is sufficient, that it has been settled.
We think, then, that if this court has power to revise the decision of the county court, — of which I have much doubt, — that court exercised their discretion soundly, and that the respondent has no just ground of complaint, and that much less is there any error in their proceedings.
The result is, that the respondent take nothing by his exceptions, and this court will pass sentence. , ,-