3 Vt. 344 | Vt. | 1830
delivered the opinion of the Court. — If the matter in the information is charged as a felony, and is to be considered as so laid, it would seem that judgement could not properly be rendered upon it as for a misdemeanor. Though it was held in some of the old cases, that when a misdemeanor was indicted as a felony,and there was a conviction on the indictment,judgement might be given as for a misdemeanor, it is fully established by the modern authorities, that the indictment in such case is bad, and that the judgement must be altogether arrested.—(Rex vs. Westbeer, 2 Stra. 1133; 1 Chit. C. L. 639; Commonwealth vs. Newell, 7 Mass. 245.) On an indictment for a felony, the prisoner must appear in person, and on trial, must here be taken and retained in custody in discharge of his recognisance ; whereas on an indictment fora misdemeanor, he is allowed to remain on bail, and may in general appear and plead by attorney. These are privileges of which the party ought not to be deprived by changing the mode of proceeding against him ; and they appear to be of sufficient importance to require an adherence to the common law rule.
Whether or not the fact alleged in the information is a misdemeanor, and can be the subject of a criminal proceeding, is a question upon which we have entertained doubts, but upon which we have at length formed an opinion. The distinction between those trespasses for which there is a private remedy only,and those for which there may be a public prosecution, is not laid down in the books with much accuracy or precision. It seems,however, to be clear, that though every trespass, which is a disturbance of the peace,’'is indictable, a mere trespass, which is the subject of a civil action, cannot be converted into an indictable offence. It appears to be the doctrine of the case of Rex vs. Storr, 3 Burr., 1698, and of Rex vs. Baker, 3 Burr., 1731, that no indictment lies at common law for a trespass committed to land or goods, unless
Judgement arrested.