State v. Hall
| Decision Date | 14 February 1923 |
| Citation | 119 A. 884,96 Vt. 379 |
| Parties | STATE v. PERLEY HALL |
| Court | Vermont Supreme Court |
November Term, 1922.
INFORMATION for fishing in the waters of Berlin Pond in violation of an order of the State Board of Health. Plea, not guilty. Trial by jury in the Montpelier City Court, F. L Laird, J. Verdict, guilty, and judgment on verdict. The respondent excepted. The opinion states the case.
Judgment and sentence reversed and cause remanded.
J Ward Carver and Earle R. Davis for the respondent.
Charles B. Adams, State's Attorney, and Webster E. Miller for the State.
Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
The respondent was convicted in the Montpelier City Court of boating and fishing on the waters of Berlin Pond in violation of an order of the State Board of Health made pursuant to the provisions of Chapter 271 of the General Laws, judgment was rendered on the verdict and the respondent was sentenced to pay a fine and costs. The case comes here on his exceptions. The only exceptions briefed are to the charge and to failure to charge.
The first exception is to the charge touching the posting of the copy of the order required by statute. The statute provides that the State Board of Health may make rules and regulations to prevent the pollution and to secure the sanitary protection of the waters of streams and ponds used by a town village, public institution or a water or ice company as a source of water or ice supply. G. L. 6311 and 6313. It further provides that the publication of an order, rule, or regulation made by said board under the provisions of Chapter 271 in a newspaper published in the town or village in which such order, rule, or regulation is to take effect, or, if a newspaper is not published in such town or village, the posting of a copy of such order, rule, or regulation in three public places in such town or village, shall be legal notice to all persons. G. L. 6314.
In its charge, the court, after instructing the jury concerning the authority of the State Board of Health to make orders, rules, and regulations relating to water supplies said, "Now, in this case, such an order was made, notices were posted in three places," etc. The respondent excepted to the statement that notices were posted in three places, on the ground that that was a question for the jury. The court thereupon said to the jury, "I stated to you that the evidence was that there had been three notices posted, and that is for you to say whether that is disputed or not."
To sustain a conviction for violating an order of the State Board of Health made pursuant to the statute under consideration, the State must establish not only the existence of the order but that it has been promulgated in the manner prescribed by statute. These are both jury questions, and must be established by the measure of proof required in State cases. In what the court first said regarding the posting of notices it treated as established the fact that notice had been posted as required by law, and so, in effect,...
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