State v. Freeman
| Decision Date | 27 July 1891 |
| Citation | 22 A. 621,63 Vt. 496 |
| Parties | STATE v. AUGUSTINE F. FREEMAN |
| Court | Vermont Supreme Court |
MAY TERM, 1891
We think there was no error in the proceedings, the respondent takes nothing by his exceptions, and execution of the sentence is ordered.
John H. Watson, for the respondent.
TAFT
The respondent stands convicted of profan cursing and, no doubt having in mind the saying of Sir Mathew Hale that truly excellent judge, than whom no man was more tender of life, "that more offenders escape by the over-easy ear given to exceptions in indictments, than by their own innocence," 2 Hale's P. C. 193, seeks to escape the penalty of his conviction by an alleged fault of the pleader. It is set forth in the complaint that he "did profanely curse" without setting forth the curses verbatim et literatim. It may be conceded that it would have been better pleading to set forth the very words, and that it is necessary to do so, was held in Rex v Popplewell, 1 Strange 686, and Rex v Sparling, 1 Strange 497; but the latter case although heard on motion in arrest, seems to have been decided upon the authority of Colborne v. Stockdale in the same volume 1 Strange 493, the question in which arose upon demurrer and therefore no authority upon the point whether the declaration was good after verdict. The prosecution insists that the allegation "did profanely curse" is sufficient after verdict, even if bad upon demurrer; whether it is, is the decisive question in the case. Was the defect cured by verdict? At common law certain defects in the declaration were cured by the verdict, and Bishop in his Dir. and For. Sec. 707 a says the rule is the same in criminal as in civil causes, and see Heyman v. Reg., Law Rep. 8 QB 102; 12 Cox C. C. 383.
We understand the rule to be that, in support of a verdict the court will presume to have been proved upon trial any fact, the existence of which must have been involved in, or was inferable from, the proof of those which were alleged and which the verdict has found. Gould's Pl., Ch. X. Sec. 20. The pleading must contain terms sufficiently general to comprehend the presumed facts in fair and reasonable intendment or the defect will not be cured. Steph. Pl. 148. The point is, not that the necessary facts are omitted in the declaration, but that they are set forth in too general a manner, or necessarily implied from those that are alleged, and that those facts which might be doubtful upon the pleadings, are ascertained by the verdict. The rule is based upon the supposition that the facts which are not specifically alleged, are presumed to have been shown upon trial and therefore the defendant is not harmed and should not be permitted "in the last stage of a cause to unravel the whole proceedings" by an objection which might have been fatal if early interposed. The rule has been extended by the statutes of amendments and jeofails, to certain defects in civil cases not reached by the common law rule; and Blackstone says the statutes "cut off those superfluous niceties which so long had disgraced our courts."
Blackstone states the common law rule accurately, but the two examples adduced to illustrate the principle, are instances of defects aided after verdict by the statute of jeofails. See Stennet v. Hogg, 1 Saunders 228, note 1, in which the annotator says "it becomes necessary therefore in order to ascertain the nature of the defects which are aided after judgment by default since the statute of Anne, to distinguish with accuracy such imperfections as are cured by verdict by the common law, from those which are now remedied by the several statutes of jeofails. The common law rule is this, that after verdict the court will presume that every fact was established that it was necessary the plaintiff should prove to entitle him to recover, if it is alleged in the declaration or necessarily implied from what is alleged. In speaking of this rule Collamer, J., in Needham v. McAuley, 13 Vt. 68, says "the law on this subject is quite clear; but in its application the decisions can hardly be reconciled." The question has been discussed and the rule stated in some cases in this state in which the allegation was held sufficient, therefore the question, whether a defect in the declaration was cured by verdict could not arise, there being no defect, and the statements of the rule by the court are in those cases, obiter. Such are the cases of Keyes v. Throop, 2 Aik. 276; Durrill v. Lawrence, 10 Vt. 517; Morey v. Homan, 10 Vt. 565; Manwell v. Manwell, 14 Vt. 14; Parlin v. Bundy, 18 Vt. 582; and on one point, that of alleging a consideration, Lincoln v. Blanchard, 17 Vt. 464, and Ammel v. Noonar, 50 Vt. 402; and such are the last two questions in Fuller v. Fuller, 4 Vt. 123, and we so understand the case of Battles v. Braintree, 14 Vt. 348, the court saying the count contained the substance of a good declaration. In an action of assumpsit, if no consideration is stated in the declaration, the defect is not cured by verdict, for one cannot be implied from what is stated. Vadakin v. Soper, 1 Aik. 287; Harding v. Cragie, 8 Vt. 501. In assumpsit for goods sold, if no sale is alleged, judgment will be arrested after verdict, for no cause of action is stated. Needham v. McAuley, supra. A familiar application of the rule is made in those cases when a consideration, a writ, or a deed is alleged imperfectly it will be presumed that a specific consideration was shown, or that the writ or deed, was a legal one. Martin v. Blodget, 1 Aik. 375; Lincoln v. Blanchard, supra. And so in respect of the general allegation of time, after verdict, it will be presumed that the correct time when material was shown, and it being a defective allegation, not the want of one, after verdict the general allegation is sufficient, comprehending the specific one. Hill v. New Haven, 37 Vt. 501; Ammel v. Noonar, supra. There are other Vermont cases in which it is held that a specific allegation is included in a general one. Wetherby v. Foster, 5 Vt. 136, was an action against a sheriff for neglect in levying an execution. The plaintiff alleged that there was turned out sufficient personal property to satisfy the execution. It was held that the want of a specific description of the property was cured by verdict, for the jury could not have found a verdict without satisfactory evidence of specific articles.
In Curtis v. Burdick, 48 Vt. 166, the plaintiff alleged he purchased land without alleging that he had paid for it. It was incumbent upon him to show that he had paid for it; the court presumed that it was so shown that the allegation of purchase included the one that he had paid for it, as purchase means to buy or acquire by paying a price. In Gates v. Bowker, 18 Vt. 23, the plaintiff averred he was a merchant, and after verdict it was insisted that the proof did not show him to be a merchant in the technical sense of that term but a mere retail dealer; but the cort presumed that it was shown he was a merchant in that sense that justified a recovery. In Newton v. Brown, 49 Vt. 16, the general allegation of a conspiracy to cheat and swindle and defraud by false and fraudulent representations was held sufficient after verdict, as it should be presumed the particular acts constituting the conspiraacy and representations were shown. In Brown v. Hitchcock, 28 Vt. 452, the court said the declaration was bad on demurrer but good after verdict, but what the defect was does not appear. In State v. Harrington, 58 Vt. 181, it was held that the averment of the defendant's knowledge of the relationship with his daughter was contained by implication in the averment used, and so it was presumed to have been proved on trial; the other points in that case made under the motion in arrest were ruled for other reasons. In an action upon a warranty of a horse, Martin v. Blodgett, supra, the declaraion averred that the horse was unsound, but did not allege in what respect; upon motion in arrest the court said, In Curtis v. Belknap, 21 Vt. 433,...
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