State v. Hodgson

• Decision Date: 15 April 1894
• Citation: 28 A. 1089,66 Vt. 134
• Parties: STATE v. EDWARD HODGSON
• Court: Vermont Supreme Court

28 A. 1089

66 Vt. 134

STATE v. EDWARD HODGSON

Supreme Court of Vermont

April 15, 1894

GENERAL TERM, 1893

Information for the illegal furnishing of intoxicating liquor. Plea, not guilty. Trial by jury at the June term 1889, Addison county, TAFT, J., presiding. Verdict, guilty.

Judgment that respondent takes nothing by his exceptions and that his motion in arrest of judgment is overruled.

W.H Bliss for the respondent.

OPINION

ROSS

I. The motion to quash was properly denied. Whether strictly addressed to the discretion of the trial court and not revisable in this court, or otherwise, the ground of the motion was that the state's attorney had no authority to proceed by information. That ground is not insisted upon now. While held to be addressed to the discretion of the trial court, and not revisable in this court, because it cannot be pleaded as a matter of right, in State v. Stewart, 59 Vt. 273, in State v. Keyes, 8 Vt. 57, State v. Davis, 52 Vt. 376, and State v. Meader, 62 Vt. 458, in which, whether the entertainment of such motions is discretionary with the trial court, was not raised nor considered, the denial of such motions by the trial court was considered and passed upon in this court. In the case last named, the judgment of the trial court, on such a motion, was reversed and the complaint was adjudged insufficient and quashed. But if the question presented by such motion can be entertained in this court, it can be entertained only upon the ground raised by the motion, and passed upon by the trial court. Error in the action of the trial court must distinctly appear. The party cannot be allowed to urge one ground for sustaining the motion in that court and then, in this court, setup a new ground for sustaining it, a ground not considered nor passed upon by the trial court. The respondent's counsel contends that, by using in the motion the words, "such information," he thereby raised the question of the sufficiency of the information. But that is not the ordinary and natural construction to be placed upon the language of the motion. If he really intended to raise the question of the insufficiency of the information, we should have expected he would have pointed out wherein he claimed it was insufficient. He should have done so to have raised that question. It is not for the trial court to hunt for some concealed rather than clearly defined ground for entertaining the motion. For this court to revise the action of the trial court on such motion, as we think it might, if it was shown that the trial court entertained it, and passed upon its sufficiency as a matter of law, the grounds for the motion, as well as the action of the trial court, should be clearly and fully set forth. Otherwise this court will assume that the trial court denied the motion, as a matter of discretion.

II. The county court properly excluded the offered testimony of the respondent with reference to his agreement with the state's attorney in regard to what offences should be covered and merged in his former conviction. The statute is specific, R. L. 3806, that "unless the respondent, at the time of pleading guilty, specifies some other days on which such offences were committed, in which case an entry thereof shall be made upon such complaint, indictment or information, and become a part of the record," the offences to which he pleads "shall be held to have been committed on the day specially set forth in such complaint, indictment or information." The offered testimony would contradict the record of the former conviction. This is not allowable. State v. Haynes, 35 Vt. 565. The record imports verity of the facts stated. If the information as drawn did not truly describe the offences to which he desired to plead guilty, the statute gave him an opportunity to have it amended so that it would. The exceptions are not sustained, and the respondent takes nothing thereby. The county court respited judgment and sentence. The case stands now for judgment and sentence in this court. R. L., 1700.

III. But the respondent has filed in this court an elaborate motion in arrest of judgment. While such motions are usually allowed to be filed at any time before final judgment, as they present the question whether, upon the record, legal judgment and sentence can be passed, yet, under our system of passing criminal causes from the trial court to this court, it is apparent that it was contemplated that this court should sit only as a court of error in such cases. R. L., 1699, the only statute on the subject, reads:

"Questions of law decided by the county court, arising upon demurrer or trial by jury, or upon motion in arrest, in prosecution by indictment, or information for a crime or misdemeanor, shall, after verdict of guilty is returned, upon motion of the respondent, be allowed and placed upon the record, and the same shall thereupon pass to the supreme court for final decision."

Then R. L., 1700, is:

"If, upon the inspection of the record in a cause where judgment, sentence and execution has been respited and stayed, the supreme court is of the opinion that judgment ought to be rendered upon the verdict, it shall render judgment and sentence thereon, and cause execution thereof to be done."

From these provisions of the statute we think that a motion in arrest of judgment and sentence cannot properly be filed in this court; that such motions should be filed in and be passed upon by the trial court, and come to this court as matter of error. We might properly dispose of this motion on this ground. But the character of the motion is so far reaching that this court would, on proper application, remand the cause to the trial court to allow the respondent to file his motion and have it passed upon there. Such being the case, and inasmuch as the questions arising on the motion have been fully argued and considered, we have concluded to pass upon the sufficiency of the motion, as though it had come regularly before this court.

Such motions are somewhat limited in their operation. They do not always reach all defects which would be reached by a general demurrer. They are confined to the record. A general demurrer reaches every material defect in substance. After verdict, every reasonable intendment is made in support of the verdict, if there is nothing on the record to prevent it. 1 Chit. Pl., 673, note 1. It is there said:

"The general principle upon which it depends appears to be that where there is any defect, imperfection, or omission, in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict."

That is:

"The court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleading was proved at the trial, and such an intendment must arise, not merely from the verdict, but from the united effect of the verdict and the issue upon which such verdict was given."

But where no ground of complaint or action is set out, the complaint, indictment, information or declaration will not be aided by verdict. This subject has been frequently before this court, and been fully elaborated, elucidated and approved. Harding v. Cragie, 8 Vt. 501; Morey v. Homan, 10 Vt. 565; Manwell v. Manwell, 14 Vt. 14; Needham v. McAuley, 13 Vt. 68; Closson v. Staples, 42 Vt. 209; and recently State v. Freeman, 63 Vt. 496; Noyes, French & Fickett v. Parker, 64 Vt. 379.

Keeping these limitations of the scope of the motion in arrest in mind, we will consider the elaborate objections and contentions of the respondent's counsel. We quite agree with his contention, that with respect to substantial allegations to be contained in the pleadings, this class of crimes is no exception to those required in charging the highest crimes. As said by this court in State v Davis, 52 Vt. 376; "This class of cases is no exception to the generality of criminal cases," and, in State v. Haley, 52 Vt. 476: "This class of statutory crime stands for the same consideration and is subject to the same rules of law as any other crime." Under this rule we need not consider whether the crimes charged, and of which respondent was found guilty, are infamous under the laws, and the decisions of the United States Supreme Court, cited by the respondent. That court, and all other courts of final resort, so far as we are aware, have classed offences against the various laws of the states, regulating or prohibiting, unless in excepted cases for specific purposes, the sale of intoxicating liquors, as misdemeanors, within the police power of the various states to regulate, restrain and punish, as the statutes of the several states might provide, unless such statutes invaded some constitutional right secured to the accused. While it is difficult to define and limit in exact terms the police power of the state, it is generally held to extend to all regulations affecting the health, good order, morals, peace and safety of society. Butler v. Chambers, 36 Minn. 69; 1 Am. St. R., 638 and note; Thorpe v. R. & B. R. R. Co., 27 Vt. 140; 62 Am. Dec., 625 and note; Slaughter House Cases, 16 Wall. 36; Mugler v. Kansas, 123 U.S. 623; 31 L.Ed. 205; People v. Wagner, 86 Mich. 594; 24 Am. St. Rep. 141, and to include the right to regulate and control the manufacture and sale of intoxicating liquors. Article 5 of the bill of rights of this state expressly reserves to the...