State v. Joel W. Pierce

• Decision Date: 05 May 1931
• Citation: 154 A. 675,103 Vt. 383
• Parties: STATE v. JOEL W. PIERCE
• Court: Vermont Supreme Court

154 A. 675

103 Vt. 383

STATE v. JOEL W. PIERCE

Supreme Court of Vermont

May 5, 1931

February Term, 1931.

Indictment and Information---Sufficiency of Complaint To Support Judgment as against Claim That It Might Apply to Either of Two Distinct Offenses---Venue---Motion in Arrest---Question Involving Consideration of Evidence Not Part of Record---Motion To Set Aside Verdict---Discretion of Trial Court---Manner in Which Evidence Must Be Construed where Ground Is Lack of Evidence To Support Verdict---Sufficiency of Evidence---Status of Modifying Evidence on Motion To Set Aside Verdict---Construction and Weight of Evidence.

1. Complaint in prosecution for tapping electrical line and knowingly using electricity therefrom without consent of owner, held not too uncertain to support judgment on ground that it might apply to either of two distinct offenses arising under G. L. 5675, and G. L. 6973, as amended by Acts 1927, No. 129, but only to charge offense under latter statute.

2. In such prosecution, averment in complaint that acts complained of were done "in Bennington in the County of Bennington," held sufficient description of place where offense was claimed to have been committed to enable respondent to prepare his defense.

3. In reviewing trial court's action in overruling motion in arrest of judgment, question involving examination of evidence which is no part of record to which Supreme Court is confined will not be considered.

4. Motion to set aside verdict as against weight of evidence is within discretion of trial court, whose ruling is not revisable, in absence of abuse of discretion.

5. On motion to set aside verdict on ground that there was no evidence upon which jury could find respondent guilty beyond a reasonable doubt, evidence must be taken in most favorable light for State.

6. In prosecution for tapping electrical line and knowingly using electricity therefrom without consent of owner, evidence held to warrant jury in finding respondent guilty beyond a reasonable doubt.

7. In passing upon motion to set aside verdict on ground that there was no evidence upon which jury could find respondent guilty beyond a reasonable doubt, effect of modifying evidence must be excluded.

8. Where there was some evidence tending to support or justify verdict, construction of evidence and its weight were for jury.

INFORMATION by State's attorney of Bennington County for tapping an electrical line and knowingly using electricity therefrom without consent of the owner. Plea not guilty. Trial by jury in Bennington County municipal court, Samuel H Blackmer, Municipal Judge, presiding. Verdict, guilty, and judgment thereon. The respondent excepted. The opinion states the case.

Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be done.

Edward J. Hall for the respondent.

Norton Barber, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ.

OPINION

MOULTON

The respondent was convicted of tapping the electric line of the Twin State Gas & Electric Company, so that electric current could be taken therefrom, and using the current thus taken without the company's consent. After verdict he moved in arrest of judgment and to set aside the verdict. Both motions were overruled, and the case is here on his exceptions.

The first ground for the motion in arrest was that the complaint was too uncertain to support a judgment because it might apply to either of two distinct offenses, each carrying its own penalty. The complaint charged that the respondent, at Bennington, in the County of Bennington, "did tap an electrical line of a corporation distributing electrical energy in this State, so that electricity could be taken therefrom, to wit, the electrical line which carries electricity to his (the respondent's) house, and which belongs to the Twin State Gas & Electric Company; and also knowingly used electricity taken by such tapping from said line without the consent of said Twin State Gas & Electric Company." The two offenses which the respondent claims are included in the language of the complaint arise under G. L. 5675, and G. L. 6973, as amended by No. 129, Acts 1927. The former section provides that a person who wilfully or intentionally injuries a wire, post, or fixture maintained in pursuance of Chapter 235, G. L., or wilfully interferes with the working of the same, or aids or assists therein, shall be liable to a certain penalty. The latter, so far as is material here, provides that a person "who taps an electrical line of a person, firm, association or corporation (engaged in manufacturing, selling or distributing electrical energy) so that electricity can be taken therefrom, or knowingly uses electricity taken from said line without the consent of such person, firm, association or corporation," shall be punished in a certain manner. Clearly the complaint charges only an offense under G. L. 6973 as amended.

The second ground for the motion was that the complaint was so indefinite that it did not give the respondent the information reasonably necessary to enable him to prepare his defense, the Town of Bennington being six miles square, and there being no indication where he tapped the wires which, as a matter of common knowledge extended over much of the town, and the three villages therein. But the averment that the acts were done "in Bennington in the County of Bennington" was a sufficient description of the place where the offense was claimed to have been committed. State v. Romano, 101 Vt. 53, 55, 140 A. 492, and cases cited. The...