State v. Edward Van Ness

• Decision Date: 03 May 1938
• Citation: 199 A. 759,109 Vt. 392
• Parties: STATE v. EDWARD VAN NESS
• Court: Vermont Supreme Court

199 A. 759

109 Vt. 392

STATE v. EDWARD VAN NESS

Supreme Court of Vermont

May 3, 1938

February Term, 1938.

Intoxicating Liquor---Extent of Exclusive Jurisdiction of Court over Matter Brought before It---Jurisdiction after Entry of Nolle Prosequi---Waiver of Right to Question Jurisdiction of Second Court---Nature of Plea Alleging Prior Jurisdiction---Plea Held Too Late---Requirements of Certainty in Criminal Pleading---Complaint Applying to Several Offenses---Regulations of Liquor Control Board---Judicial Notice of Day of Week---Counts as to Illegal Sales of Liquor on Sunday Held Sufficient---Count as to Illegal Sale Held Insufficient---Count as to Keeping with Intent to Sell Held Insufficient---When Keeping with Intent to Sell Is Offense---Counts Drawn in Form Prescribed Insufficient---Malt Beverages and Spirits as Intoxicants---Count Held Sufficient Though Alcoholic Content Not Alleged---Whether Evidence Supported Counts Alleging Sunday Sales Not Issue---Motion in Arrest of Judgment Where Some of Counts Alleging Same Offense Are Bad---Where Counts Allege Different Offenses---Remand Unnecessary Where Sentences Concurrent and Some Counts Bad.

1. Court which first acquires jurisdiction of a criminal matter is entitled to exclusive authority over it as long as it is pending before it in any of its aspects, but when jurisdiction of that court comes to an end in any legal way and matter is no longer before it, then if another prosecution can be brought anywhere, it may be brought in another court of competent jurisdiction.

2. Jurisdiction of municipal court ceased when nolle prosequi was entered, and plea to information subsequently filed in county court for same offenses, alleging that county court could not exercise its jurisdiction because municipal court had already taken jurisdiction over matter, was demurrable.

3. Respondent waives any right he had to object to jurisdiction of court over criminal matter on ground that another court first acquired jurisdiction over it, unless he asserts his rights at his first opportunity and before he submits to jurisdiction of second court.

4. Plea to criminal charge that another court first acquired jurisdiction was in essence a plea in abatement, since it did not deny jurisdiction to try cases of same class, but set up external matters as affording reason why jurisdiction could not be exercised in particular case, and if respondent were to prevail, judgment should be that case against him should abate.

5. In criminal prosecution, special plea that court should not exercise its jurisdiction because another court had taken jurisdiction over matter came too late when it was entered after respondent had pleaded not guilty and given bail, since he had waived advantage of all abatable matters.

6. In criminal pleading reasonable certainty in statement of crime suffices, and all that is required is that charge be set forth with such particularity as will reasonably indicate exact offense which accused is alleged to have committed, and will enable him to prepare his defense, and if found guilty to plead conviction in subsequent prosecution for same offense.

7. Complaint or information which may apply to one of several definite offenses, without specifying which, is fatally defective under common law and under Ch. 1, art. 10, of the Constitution of Vermont, providing that in criminal prosecutions accused has right to demand cause and nature of his accusation.

8. Regulations of liquor control board, made and promulgated under authority of sec. 12, No. 1, Acts of the Special Session of 1934, as amended, have force of law.

9. Court took judicial notice that dates named in two counts of information charging illegal sales of intoxicating liquor fell on Sunday.

10. Counts in information charging that on date and at place named respondent "did, without authority of law, sell to" designated person certain intoxicating liquor charged offense of selling on Sunday in violation of Sec. 14 No. 196, Acts of 1935, with requisite degree of certainty where dates specified fell on Sunday, since statute refers to all persons, whether or not licensed, so that every sale on Sunday constitutes offense unless it falls within certain exceptions which need not be negatived in information.

11. Count in information charging that on date and at place named respondent "did, without authority of law, sell to" designated person certain intoxicating liquor did not charge offense with sufficient particularity where date named was not Sunday, in view of large number of ways in which intoxicating liquor may be illegally sold.

12. Count in information charging that on date and at place named respondent "did keep intoxicating liquor, to wit, * * * with intent to sell the same without authority of law," etc., did not charge offense with sufficient particularity.

13. Under provisions of sec. 3, No. 1, Acts of the Special Session of 1934, as amended, crime of keeping liquor with intent to sell does not relate only to those who have not procured license, but forbids such keeping except as authorized in the act, so that it is illegal to keep with intent to sell in any circumstances in which it is illegal to sell.

14. Fact that counts in information for violations of liquor laws were drawn in accordance with form prescribed by sec. 87, No 1, Acts of the Special Session of 1934, did not obviate objection under Ch. 1, art. 10, of Constitution of Vermont that offenses were not alleged with sufficient certainty.

15. While no definition of intoxicating liquor is given therein No. 1, Acts of the Special Session of 1934, read as a whole and construed liberally as required by sec. 1 thereof, leaves no doubt that malt beverages and spirits of alcoholic content prescribed in sec. 2, as amended, are intended to be classified as intoxicants.

16. In prosecution for illegal sale of intoxicating liquor, count charging that respondent sold "intoxicating liquor, to wit one bottle of ale," etc., was sufficient without alleging percentage of alcohol contained therein.

17. In prosecution for violation of liquor law, where respondent raised no question of variance between averment and proof and did not furnish transcript, but questioned only sufficiency of information, whether evidence supported counts alleging sales on dates which fell on Sunday in showing unlawful sales on Sunday was not issue before Supreme Court.

18. Where various counts in indictment allege same offense in different language and same evidence is pertinent to each, and where any count is sufficient and verdict is general, motion in arrest cannot prevail.

19. Where each count charges separate and distinct crime, depending upon different proof for its substantiation, and where verdict on some of counts cannot be sustained, motion in arrest need not be sustained as to all counts, but respondent may be sentenced or sentence affirmed on good counts.

20. Where two counts in information were sufficient to support judgment of guilty and two were insufficient, and sentences on all counts were the same and were to run concurrently, remand was unnecessary, judgment on good counts being allowed to stand and judgment on bad counts being arrested and respondent discharged.

INFORMATION in four counts for illegal selling of intoxicating liquor and illegal keeping thereof with intent to sell. Special plea to jurisdiction. The State demurred. Demurrer sustained. The respondent excepted and entered plea of not guilty. Trial by jury at the December Term, Bennington County, Sherman, J., presiding. Verdict of guilty on each count and judgment and sentence thereon. The respondent excepted. The opinion states the case.

As to counts 3 and 4, the judgment is reversed, the motion in arrest is sustained, judgment is arrested and the respondent is discharged. As to counts 1 and 2 the judgment is affirmed. Let execution be done.

Jerome, Graves & Graves for the respondent.

Alban J. Parker, Deputy Attorney General, and George H. Plumb, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

POWERS

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...