State v. Wheeler, 3 Vt. 344

State v. Wheeler

3 Vt. 344 | Vt. | 1830

Prentiss, Ch. J.,

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 *348there be a riot or a. forcible entry. According to those cases, a ¡r J (mere invasion of private property, without a disturbance of the peace, does not concern the public, but is a private injury only, for which an action of trespass lies. In England, the killing or maiming cattle belonging to another, from motives of malice or revenge to the owner, is made penal by statute ; and there is no precedent in the English books of a conviction for killing or wounding an animal, nor any intimation that the act is an indictable offence, at common law. In Ranger’s case, 2 East’s P. C. 1074, which was an indictment at common law for unlawfully, with force and arms, and against the peace, maiming a horse, it was held, that the indictment contained no indictable offence,* for if the offence ivas not within the statute, the fact in itself was only a trespass. Although an intimation was thrown out in the case that the words vi et armis did not imply force sufficient to support an indictment, it does not follow that the mere laying of the special force which attended the act would have varied the case in principle. It would hardly do to act upon the distinction between actual and implied force,and to hold that every trespass to property,where there is actual force, is indictable. If such was the law, the wounding or injuring of an animal belonging to another from a sudden impulse of passion towards it, which is plainly an injury of a private nature, and amounts to nothing more than a trespass, would form the ground of a criminal proceeding. Indeed, the doctrine would make almost every trespass or injury to private property the subject of an indictment, and would give to the courts a fearful and alarming jurisdiction, which could be exercised in general to little other purpose than vexation and oppression. The epithets, wil-fully, maliciously. &tc., contained in the information, are words of mere form, which may be applied to every trespass or injury to ■private property ; and neither they, nor the special statement of the manner in which the act was done, showing actual force, can have the effect to make the act a public offence. In exercising criminal jurisdiction in common law cases, courts should be under the guidance and restraint of established principles and precedents, and should not allow themselves to go beyond them. An undefined jurisdiction, or an unlimited discretion, in criminal cases, is an arbitrary and dangerous power, incompatible with civil liberty, and ought never to be assumed or exercised ; and unless an act is made criminal by some statute, or is clearly defined to be. an offence by the common law, it ought not to be treated or punished as such. The civil remedy which the law affords for *349trespasses to property, is, in ordinary cases, a sufficient corrective ; but if the interest or protection of society requires that any class of them, not now indictable, should, on account of their mischievous nature or tendency, be proceeded against and punished criminally, the legislature can make the necessary provision.

Judgement arrested.