State v. John Shady

• Decision Date: 05 October 1927
• Citation: 138 A. 777,100 Vt. 404
• Parties: STATE v. JOHN SHADY
• Court: Vermont Supreme Court

138 A. 777

100 Vt. 404

STATE v. JOHN SHADY

Supreme Court of Vermont

October 5, 1927

May Term, 1927.

PETITION for a new trial, preferred to Supreme Court Washington County, by respondent convicted under G. L. 6973 of tapping wires and using electric current of electric power corporation without its consent.

Petition dismissed with costs.

William W. LaPoint and Albert A. Sargent for the petitioner.

Deane C. Davis, State's attorney, for the State.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

POWERS

This is a petition for a new trial in the case of the same name reported in 100 Vt. 193, 136 A. 26. The petition is based upon the petitioner's desire to bring onto the record the fact that at the time of the enactment of G. L. 6973 individually owned electric light and power plants were in operation in this State, so that he may make it appear that the statute referred to is unconstitutional for the reasons urged when the case was here on exceptions. It would do him no good to succeed in this effort. The statute is not subject to the infirmities urged. Speaking broadly, it is the province of the Legislature to decide what acts are sufficiently inimical to the public welfare to be declared to be criminal. In the matter of creating and defining criminal offenses, the Legislature has a very broad discretion, with the exercise of which the courts can interfere only when constitutional limitations plainly have been transgressed. The power of classification for such legislative purpose will be reviewed only when exercised in a palpably arbitrary manner. It is established by the decisions that a criminal statute enacted for the protection of a particular class is not unconstitutional simply because the specified class is not all-inclusive or might have been so enlarged as to include others equally meriting the same protection.

Perhaps we can speak no more convincingly than to quote the language of the Supreme Court of the United States on this subject. In Patsone v. Pennsylvania, 232 U.S. 138, 58 L.Ed. 539, 543, 34 S.Ct. 281, Mr. Justice Holmes says "We start with the general consideration that a state may classify with reference to the evil to be prevented, and if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named. * * * The State 'may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses.'"

Again in Keokee Consolidated Coke Co. v. Taylor, 234 U.S. 224, 58 L.Ed. 1288, 1290, 34 S.Ct. 856, 857, the same distinguished jurist says: "But while there are differences of opinion as to the degree and kind of discrimination permitted by the ...