State v. Elwell, No. 180-72

Docket NºNo. 180-72
Citation131 Vt. 245, 303 A.2d 134
Case DateApril 03, 1973
CourtUnited States State Supreme Court of Vermont

Page 134

303 A.2d 134
131 Vt. 245
STATE of Vermont
v.
Jack R. ELWELL.
No. 180-72.
Supreme Court of Vermont.
April 3, 1973.

[131 Vt. 246] Neil S. Moss, State's Atty., for the State.

Putter & Carrington, Arlington, for defendant.

Before [131 Vt. 245] SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

[131 Vt. 246] SMITH, Justice.

This is an appeal before final judgment by the defendant from the decision of the Vermont District Court, Unit No. 1, Bennington Circuit, denying the defendant's motion to quash the information. The State has agreed to the appeal before final judgment, and the question has been certified here by the trial court by virtue of 12 VSA § 2386.

The defendant was charged by information with a violation of 13 VSA § 1026(3), which charge reads as follows:

'Jack Robert Elwell, at Bennington, in the County of Bennington, on to wit, the 18th day of July, 1972, was then and there a person who with intent to cause public inconvenience and recklessly creating a risk thereof, did use abusive and

Page 135

obscene language in a public place in violation of 13 VSA Sec. 1026(3), contrary to the form of the statute, in such case made an provided, and against the peace and dignity of the State.'

13 VSA § 1026(3) reads:

'A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:

(3) In a public place uses abusive or obscene language . . ..

shall be imprisoned for not more than 60 days or fined not more than $500.00 or both.'

The defendant seeks to have the information quashed on the grounds that 13 VSA § 1026(3) is constitutionally vague and an infringement on liberties guaranteed by the First Amendment to the United States Constitution. It is the policy of this Court, however, to consider constitutional questions only when it is determined that the case is not to be disposed of on other grounds. Law's Admr. v. Culver, 121 Vt. [131 Vt. 247] 285, 290, 155 A.2d 855 (1959), State v. Graves, 119 Vt. 205, 207, 122 A.2d 840 (1956).

A motion to quash must be based upon facts appearing on the record. State v. Ward, 60 Vt. 142, 153, 14 A. 187 (1887), and cases cited therein. The grounds advanced by the defendant in his motion to quash are (a) that 13 VSA § 1026(3) is vague in the conduct it seeks to proscribe and (b) that the statute is an overbroad intrusion on the rights of free speech of this respondent and the general public in that it punishes protected free speech.

The denial...

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12 practice notes
  • State v. Read, No. 95-023
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 22, 1996
    ...and Fourteenth Amendments to the United Page 947 States Constitution. 2 Identical claims were raised by an earlier case, State v. Elwell, 131 Vt. 245, 303 A.2d 134 (1973), but we were not called upon to resolve those claims, because we determined that the interlocutory appeal had been impro......
  • Pyramid Co. of Burlington, In re, No. 125-81
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 8, 1982
    ...Johnson v. Alldredge, 488 F.2d 820, 822 (3d Cir. 1973), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974); State v. Elwell, 131 Vt. 245, 248, 303 A.2d 134, 136 This case is certainly ill-suited for appellate decision without a factual record. See Shatkin v. University of Vermo......
  • State v. Haynes, Nos. 19-006
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 28, 2019
    ...the question of how those changes affected the availability of interlocutory review to defendants in criminal cases. In State v. Elwell, 131 Vt. 245, 303 A.2d 134 (1973), the defendant was charged with disorderly conduct and moved to dismiss, arguing that the statute was constitutionally va......
  • Wood v. Wood, No. 49-76
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 4, 1977
    ...before us on the record to shed any light on the factual situation out of which the certified question has arisen'. State v. Elwell, 131 Vt. 245, 248, 303 A.2d 134 (1973). See also State v. Preston, 132 Vt. 480, 482, 321 A.2d 37 (1974); Powers v. State Highway Board, 123 Vt. 1, 5, 178 A.2d ......
  • Request a trial to view additional results
12 cases
  • State v. Read, No. 95-023
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 22, 1996
    ...and Fourteenth Amendments to the United Page 947 States Constitution. 2 Identical claims were raised by an earlier case, State v. Elwell, 131 Vt. 245, 303 A.2d 134 (1973), but we were not called upon to resolve those claims, because we determined that the interlocutory appeal had been impro......
  • Pyramid Co. of Burlington, In re, No. 125-81
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 8, 1982
    ...Johnson v. Alldredge, 488 F.2d 820, 822 (3d Cir. 1973), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974); State v. Elwell, 131 Vt. 245, 248, 303 A.2d 134, 136 This case is certainly ill-suited for appellate decision without a factual record. See Shatkin v. University of Vermo......
  • State v. Haynes, Nos. 19-006
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 28, 2019
    ...the question of how those changes affected the availability of interlocutory review to defendants in criminal cases. In State v. Elwell, 131 Vt. 245, 303 A.2d 134 (1973), the defendant was charged with disorderly conduct and moved to dismiss, arguing that the statute was constitutionally va......
  • Wood v. Wood, No. 49-76
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 4, 1977
    ...before us on the record to shed any light on the factual situation out of which the certified question has arisen'. State v. Elwell, 131 Vt. 245, 248, 303 A.2d 134 (1973). See also State v. Preston, 132 Vt. 480, 482, 321 A.2d 37 (1974); Powers v. State Highway Board, 123 Vt. 1, 5, 178 A.2d ......
  • Request a trial to view additional results

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