Neil v. State of Vermont

• Citation: 144 U.S. 323,12 S.Ct. 693,36 L.Ed. 450
• Parties: O'NEIL v. STATE OF VERMONT
• Decision Date: 04 April 1892
• Court: United States Supreme Court

144 U.S. 323

12 S.Ct. 693

36 L.Ed. 450

O'NEIL v. STATE OF VERMONT.

April 4, 1892.

J. C. Baker and A. H. Garland, for plaintiff in error.

W. C. Dunton, P. Redfield Kendall, and Geo F. Edmunds, for the State.

Mr. Justice BLATCHFORD delivered the opinion of the court.

On the 26th of December, 1882, a grand juror of the town of Rutland, in the county of Rutland and state of Vermont, made a written complaint, on his oath of office, before a justice of the peace of that county, that John O'Neil, of Whitehall, N. Y., on December 25, 1882, at Rutland, at divers times, did 'sell, furnish, and give away intoxicating liquor, without authority,' and contrary to the statute; and, further, that O'Neil, at the March term, 1879, of the Rutland county court, had been convicted of selling, furnishing, and giving away intoxicating liquors against the law. Thereupon the justice issued a warrant for the arrest of O'Neil. He was arrested and brought before the justice, and pleaded 'Not guilty.'

The statute of Vermont under which the prosecution was instituted is embodied in sections 3800 and 3802 of chapter 169 of the Revised Laws of Vermont of 1880, (pages 734, 735,) in these words:

'Section 3800. No person shall, except as otherwise especially provided, manufacture, sell, furnish, or give away, by himself, clerk, servant, or agent, spirituous or intoxicating liquor, or mixed liquor of which a part is spirituous or intoxicating, or malt liquors or lager-beer; and the phrase 'intoxicating liquors,' where it occurs in this chapter, shall be held to include such liquors and beer.

'The word 'furnish,' where it occurs in this chapter, shall apply to cases where a person knowingly brings into or transports within the state for another person intoxicating liquor intended to be sold or disposed of contrary to law, or to be divided among or distributed to others.

'The words 'give away,' where they occur in this chapter, shall not apply to the giving of intoxicating liquor at private dwellings, or their dependencies, unless given to an habitual drunkard, or unless such dwelling or its dependencies become a place of public resort.

'But no person shall furnish or give away intoxicating liquor at an assemblage of persons gathered to erect a building or frame of a building, or to remove a building, or at a public gathering for amusement.

'Nothing in this chapter shall prevent the manufacture, sale, and use of wine for the commemoration of the Lord's supper, nor the manufacture, sale, and use of cider, or, for medical purposes only, of wine made in the state from grapes or other fruits, the growth of the state, and which is without the admixture of alcohol or spirituous liquor, nor the manufacture by any one for his own use of fermented liquor. 'But no person shall sell or furnish cider or fermented liquor at or in a victualing house, tavern, grocery, shop, cellar, or other place of public resort, or at any place, to an habitual drunkard.'

'Sec. 3802. If a person, by himself, clerk, servant, or agent, sells, furnisher, or gives away, or owns, keeps, or possesses, with intent to sell, furnish, or give away, intoxicating liquor or cider in violation of law, he shall forfeit for each offense to the state, upon the first conviction, ten dollars and costs of prosecution; on the second conviction he shall forfeit for each offense twenty dollars and costs of prosecution, and shall also be imprisoned one month; and on the third and subsequent convictions he shall forfeit for each offense twenty dollars and the costs of prosecution, and shall also be imprisoned not less than three months nor more than six months.'

The complaint was in the form prescribed by section 3859 of the Revised Laws of Vermont, for offenses against section 3802; and section 3860 provides that under such form of complaint 'every distinct act of selling' may be proved, 'and the court shall impose a fine for each offense.'

The justice, after hearing the proofs of the parties, entered judgment finding O'Neil guilty of 457 offenses, second conviction, of selling intoxicating liquors in violation of chapter 169 of the Revised Laws, and adjudging that he pay to the treasurer of the state a fine of $9,140, and the costs of prosecution, taxed at $472.96, and be confined at hard labor in the house of correction at Rutland for the term of one month and that, in case such fine and costs should not be paid on or before the expiration of said term of one month's imprisonment, he should be confined at hard labor in the house of correction at Rutland for the further term of 28,836 days, to be computed from the expiration of said term of one month's imprisonment. From that judgment O'Neil appealed to the county court of Rutland county. The appeal was allowed, and he gave bail for his appearance.

In the county court O'Neil pleaded 'Not guilty,' and the case was tried by a jury. He did not take the point, either before the justice of the peace or the county court, that there was any defect or want of fullness in the complaint. Any such point was waived by the failure to take it. Besides, it did not involve any federal question. The question of the consolidation of several offenses in one complaint is purely a matter of state practice; and it is a familiar rule of criminal law that time need not be proved as alleged.

The jury found O'Neil guilty of 307 offenses 'of selling intoxicating liquor without authority, and contrary to the laws of Vermont, as of a second conviction for a like offense.' He filed exceptions, which state that, for the purpose of the trial, he admitted the following facts: 'The respondent, John 'O'Neil, of Whitehall, in the county of Washington and state of New York, is a wholesale and retail dealer in wines and liquors at said Whitehall, and has been so engaged in business there for more than three years last past, and that said business by him carried on is a lawful and legitimate business under the laws of the state of New York, as conducted by him there. That during the last three years the respondent has received at his store, in said Whitehall, and distinct orders by mail, telegraph, and distince orders by mail, telegraph, and express for specified and designated small quantities of intoxicating liquors, from as many different parties residing in Rutland, in the state of Vermont. The orders so sent by express were in the form of a letter addressed to the said John O'Neil at Whitehall, aforesaid, and the letter attached to a jug, and the jug, with the letter attached, was delivered by said parties to the National Express Company, in Rutland, and charges thereon paid by the parties so sending the order. Orders sent by mail were by letters or postal-cards deposited in the post-office at said Rutland, directed to John O'Neil at Whitehall, New York, and postage paid thereon. Orders sent by telegraph were delivered by the sender at the telegraph offices in said Rutland, directed to said John O'Neil, Whitehall, New York, and charges paid by the sender, which orders requested the respondent to send said intoxicating liquors to the parties ordering the same at said Rutland; and in more than one-half the number of instances said orders directed him to send said liquors by express, C. O. D., and in the other instances, where the orders did not specify, it was the intention of the purchaser to have the goods so sent to him. It is the usual course of trade for merchants receiving an order from a considerable distance for goods in small quantities, to send the same by express, C. O. D., when the order is not from a regular customer or a party of known responsibility. That upon the receipt of said orders the respondent has in each case measured out the liquors called for in his order at his store in Whitehall aforesaid, and packed the same in jugs or other vessels, and attached to each package a tag, upon which was written the name and address of the party ordering the same, and delivered each package, so directed and addressed, at Whitehall, aforesaid, to the National Express Company, a New York corporation, a common carrier, doing business between New York and Montreal, and including the route between said Whitehall and said Rutland; and each of said packages also had upon said tag the name and business card of the respondent, and none of said packages were in any manner disguised, and all of them were sealed with wax. It was not stated on the jugs or tags what they contained. The respondent at the same time delivered to said express company a bill of said liquor, which said carrier placed in an envelope, marked C. O. D., which envelope had indorsed thereon, among other things, the following instructions: 'Do not deliver the whole or any part of the goods accompanying this bill until you receive pay therefor. Be careful to notice what money you receive, and, as far as practicable, send the same as received, and follow the special instructions of the shipper, if any are given, on the bills. If goods are refused, or the parties cannot be found, notify the office from whence received, with names and dates, and await further instructions,' meaning thereby that said express company should receive the amount of said bill upon the delivery of the package to the consignee, and that without payment of said bill the said liquor should not be delivered. That, in the usual and ordinary course of business of said carrier in such cases, the said express company delivered each of said packages to the consignee named upon said tag, at Rutland, and at the same time, and concurrently with such delivery, received the amount of the said bill in the C. O. D. envelope, the amount of freight for the transportation of said package from Whitehall to Rutland, and the charges for returning said money to the respondent at Whitehall. The express company placed said money for the payment of said bill in the same envelope, and returned it to the respondent at Whitehall. The respondent did...