State v. Barr

• Decision Date: 25 October 1905
• Parties: STATE v. BARR et al.
• Court: Vermont Supreme Court

62 A. 43

78 Vt. 97

STATE v. BARR et al.

Supreme Court of Vermont. Caledonia.

Oct. 25, 1905.

Exceptions from Caledonia County Court; Tyler, Judge.

Eddie Barr and another were convicted of selling intoxicating liquors, and they except. Overruled.

Argued before ROWELL, C. J. and MUNSON, START, WATSON, HASELTON, and POWERS, JJ.

Frank D. Thompson, State's Arty., and David E. Porter, for the State. Taylor & Dutton, for respondents.

ROWELL, C. J. This is an information under the license act of 1902. Six counts are for selling and furnishing intoxicating liquor without a license, and two for keeping and exposing for sale without a license.

It was not error to allow the state, after having introduced evidence tending to show six offenses of selling, to introduce evidence of other sales. This precise question was so ruled in State v. Smith, 22 Vt. 74, and in State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90.

But as each sale was a separate offense, it was error for the court to refuse at the close of the testimony to require the state to elect the occasions on which it would rely for conviction under the counts for selling, and to allow the case to go to the jury on all the evidence of sales, although it ruled that there could be a conviction of no more offenses than there were counts and charged that each offense must be found on evidence particularly relating to it. Although that was a question of practice, addressed to the discretion of the court, still that discretion was to be exercised within the bounds of the law, which are pretty well defined in such cases. Hubbard v. Hubbard, 77 Vt., at page 77, 58 Atl. 969, 67 L. R. A. 909. The object of an election being, whether of counts or offenses, to save the prisoner from embarrassment in his defense, the cases say that as a rule it should be made before the prisoner is called upon to put in his evidence. Thus, in State v. Smith, 22 Vt. 74, this court said there is much good sense in what Alderson, J., said in Wigglesworth's Case, that the election ought to be made, not merely before the case goes to the jury, but before the prisoner is called upon for his defense, and approved of that as satisfactory. State v. Willett, 78 Vt. ——, 62 Atl. 48. The special circumstances of a case may make it proper to defer election till the testimony is all in. Pointer v. United States, 151 U. S. 390, 14 Sup. Ct. 410, 38 L. Ed. 208. But then it should be made before summing up. Woodford v. People, 62 N. Y., at page 131, 20 Am. Rep. 464. In a prosecution for rape, where several acts of intercourse were proved, the state was allowed to go to the jury on all of them, and held error; for, each act being a separate offense, the state should have been put to elect which it would rely upon. Powell v. State (Tex. Cr. App., Oct. 1904) 82 S. W. 516. It is held in Kentucky that where several separate offenses are proved, though the indictment is general, the state must elect, and cannot submit them all to the jury. Commonwealth v. Illinois Central R. R. Co. (Ky. Ct....