199 A. 759 | Vt. | 1938
On October 23, 1937. the State's attorney of Bennington County by an information in three counts prosecuted the respondent in the Bennington municipal court for selling intoxicating liquor on three specified dates. The respondent appeared, pleaded not guilty, and was released on bail. Thereafter and on December 15, 1937, the State's attorney nol prossed the information pending in the municipal court, and a record thereof was made by that court. On December 16, 1937, the State's attorney filed an information in the county court charging the respondent with the identical offenses of selling above set forth, and included therein a fourth count charging the respondent with keeping intoxicating liquor with intent to sell the same on October 23, 1937. The respondent was arraigned in the county court, pleaded not guilty, and was released on bail. On December 24, 1937, the respondent filed a plea setting up the facts regarding the prosecution in the municipal court and insisting that the county court could not exercise its concurrent jurisdiction because the jurisdiction of the municipal court having once been invoked prior to the proceedings in the county court it was and continued to be exercised as to the charges of selling. The plea of not guilty still stood on the docket, but on January 11, 1938, it was, by leave of the court, withdrawn and stricken off. The respondent then filed an amended plea based upon the same grounds as are above specified. To the special plea, as amended, the State demurred. The demurrer was sustained and the respondent excepted. Then the respondent renewed his plea of not guilty and the case went to trial before a jury. A verdict of guilty was returned on each of the four counts. The respondent then moved in arrest of judgment on the ground that the information was insufficient to support a judgment. This motion was overruled, and the respondent excepted. In other ways the respondent attempted to raise the same questions as were covered by the foregoing exceptions, but special consideration of these is not required. Judgment on the verdict was rendered on January 21, 1938, and the respondent was sentenced to be confined in the state prison for the term of not less than four and one-half months and not more than five months on each of the four counts and it was ordered that the sentences should run concurrently. *397
It is a little difficult to understand why the respondent is here, because the count for keeping with intent to sell was never in the municipal court, and the special plea does not cover it. So if he prevails to the full extent of his claims, the most that can be done for him will be to reverse the judgment and vacate the sentences on the three counts for selling, leaving the judgment and sentence on the count for keeping. His imprisonment would be for exactly the same time, though for only one of the four charges made against him.
The respondent contends that the county court could not exercise its jurisdiction in this case, because the municipal court had already taken jurisdiction of it and that the jurisdiction of the latter court was exclusive and continuous until the specific charges made against the respondent were finally determined. In support of his contention, he calls attention to 16 C.J. 437, where it is said: "The State cannot, after filing a complaint or information in a court having jurisdiction, enter a nolle prosequi and file an indictment or information charging the same crime in another court having concurrent jurisdiction." The cases cited in support of this statement, so far as now accessible, justify it. However, we are not impressed with their reasoning and are not content with their conclusion. The rule adopted seems to us to be unnecessarily and unreasonably restrictive. To us, it seems quite enough to answer the requirements of politeness and policy, to hold that the court which first acquires jurisdiction of a matter is entitled to exclusive authority over it as long as it is pending before it in any of its aspects. But when the jurisdiction of that court comes to an end in any legal way and the matter is no longer before it, then if another prosecution can be brought anywhere, it may be brought in another court of competent jurisdiction.
The subject under discussion is not wholly unfamiliar to this Court. A very important phase of it was involved and discussed in Bank of BellowsFalls v. Rutland Burlington Railroad Co.,
The rule was approved and applied in Whittier v. McFarland,
The rule was referred to with apparent approval in In re Dawley,
State v. Stanley,
We hold that the jurisdiction of the municipal court ceased when thenolle prosequi was entered and that the demurrer was properly sustained.
Then, too, the rule is one that a respondent may waive, and he does waive it unless he asserts his rights under it at his first opportunity and before he submits to the jurisdiction of the second court. Plume Atwood Mfg. Co. v. Caldwell,
As we have seen, the information is in four counts. The first three are substantially alike, each alleging that the respondent on a certain specified day, at Bennington, in the County of Bennington "did, without authority of law, sell to" a designated person "intoxicating liquor, to wit one bottle of ale — to wit one bottle of Stanton Pale Ale, contrary to the form of the statute," etc. The fourth count alleges that the respondent, at Bennington, upon a certain day "did keep intoxicating liquor, to wit, one quart of Ridgewood whiskey, so-called, thirty-one bottles of Stanton Pale Ale, so-called, with intent to sell the same without authority of law, contrary to the form of the statute," etc.
It is a well-established principle of criminal pleading that while reasonable certainty in the statement of the crime suffices, and all that is required is that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed, and will enable him intelligently to prepare his defense, and, if found *400
guilty, to plead his conviction in a subsequent prosecution for the same offense, a complaint or information which may apply to one of several definite offenses, without specifying which, is fatally defective under the common law, and equally so under Ch.
State v. Villa, supra, was a prosecution for the illegal sale of intoxicating liquor, under P.S. 5102, which provided that "No person shall furnish or sell, or expose or keep with intent to sell, any intoxicating liquor, except as authorized by this chapter." The complaint charged that the respondent at a time and place named, did "sell intoxicating liquor without authority" contrary to the statute and against the peace, without further particulars or description. It was held that since there were, under various sections contained in P.S. Ch. 219, several different ways in which one could be guilty of selling intoxicants illegally, each amounting to a distinct statutory offense and requiring different evidence to sustain or defend it, it could not be said that the respondent was sufficiently informed of the particular offense charged against her. The information was defective and the judgment of guilty was arrested. In State v. Elliott,
In State v. Romano,
The present statute (sec. 3, No.
The foregoing list of infractions of the law relating to the sale of intoxicating liquor is by no means complete, yet it serves to show that the allegation that the respondent sold liquor without authority, without further specification, is not sufficient to indicate to him with reasonable certainty the exact offense with which he is charged. But counts 1 and 2 are not so indefinite as the respondent would have us believe. The dates alleged are August 29, 1937, and October 10, 1937, and each of these days was Sunday, a fact of which judicial notice may be taken. Schmidt v. Town of Manchester,
This, however, cannot be said of count 3, which is clearly insufficient under the rule announced in the Villa and Elliott cases.
And so is count 4. The language of the statute does not indicate that the crime of keeping with intent to sell relates only to those who have not procured a license, as in State v. Monte,
The fact that these counts are drawn in accordance with the form prescribed by statute (sec. 87, No.
It is argued that the Legislature has failed to define intoxicating liquor and therefore no offense is described in any of the counts. Since we have held that counts 3 and 4 are insufficient, this objection is considered only as it bears upon counts 1 and 2. It is, however, unavailing. In each count the particular beverage charged to have been illegally sold is specified under the videlicit. Sec. 2, No.
Whether the evidence produced at the trial supported counts 1 and 2 in that it showed unlawful sales on a Sunday is not an issue before us. In the absence of a showing to the contrary we will assume that it did. The respondent has raised no question of variance between averment and proof, here or in the court below; neither has he furnished us with the transcript. The only claim concerns the sufficiency of the charge alleged in the information. The sentence imposed by the trial court is within the limits permitted for a sale on Sunday. Sec. 14, No.
It has been held that where any count in an indictment is sufficient and the verdict is general, a motion in arrest cannot prevail. State v.Smith,
So here the judgment rendered on counts 1 and 2 will be allowed to stand. Since the sentences on all the counts are the same and run concurrently, and no fines were imposed, a remand is unnecessary.
As to counts 3 and 4, the judgment is reversed, the motion in arrest issustained, judgment is arrested and the respondent is discharged. As tocounts 1 and 2 the judgment is affirmed. Let execution be done.