State v. Mary Monte

• Citation: 99 A. 264,90 Vt. 566
• Parties: STATE v. MARY MONTE
• Decision Date: 10 November 1916
• Court: United States State Supreme Court of Vermont

99 A. 264

90 Vt. 566

STATE v. MARY MONTE

Supreme Court of Vermont

November 10, 1916

October Term, 1916.

COMPLAINT for keeping intoxicating liquor, under P. S. 5204 brought to the Montpelier City Court. Plea, not guilty. Trial by the court. Harvey, Judge. Judgment, guilty. The respondent thereupon moved in arrest of judgment. Motion overruled. Respondent excepted. The opinion states the case.

There is no error and the respondent takes nothing. Let execution be done.

Theriault & Hunt for the respondent.

Fred E. Gleason, State's Attorney, for the State.

Present MUNSON, C. J., HASELTON, POWERS and TAYLOR, JJ.

OPINION

POWERS

This respondent, having been convicted of keeping intoxicating liquor with intent to sell or furnish the same illegally moved in arrest of judgment for insufficiency of the complaint, and brings her case here on an exception taken when that motion was overruled:

P. S. 5204, so far as need here be stated, provides that "a person who * * * keeps with intent to furnish or sell, intoxicating liquors, without first procuring a license, or a licensee who furnishes or sells such liquors after his license has been forfeited or during a suspension of its operation" shall be punished as therein provided.

The complaint which furnishes the predicate of this conviction charges that the respondent, at a time and place specified, did, "without authority so to do, keep with intent to sell and furnish intoxicating liquor, contrary," etc.

From the language of the statute it appears that the crime of keeping with intent to sell or furnish relates only to persons who have not procured a license. A licensee whose license has been forfeited or suspended commits no offence under this statute unless he actually sells or furnishes.

So far, then, as here involved, the statute creates but one offence, and applies only to one class of persons; and the only question for our determination is the one argued,--are the words "without authority so to do" a sufficient allegation that the respondent kept the liquor "without first procuring a license?"

All agree that the governing rule is correctly stated in State v. Scampini, 77 Vt. 92, 59 A. 201, as follows: "A negative averment may be in the words of the statute, or it may be in words of equivalent meaning. Any negative in general terms covering the entire substance of the matter will suffice; but it must be as broad as the provision to which it applies."

So the test is does this negation cover the "entire substance of the matter?" Is it "as broad as the provision to which it relates?"

We think the language of the complaint answers the requirements of the rule. The phrase "without authority so to do,"--obviously meaning without lawful authority so to do,--is, in the section named, the legal equivalent of the phrase "without first procuring a license." The only possible way that this respondent could obtain lawful authority to keep this liquor as charged was to first procure a license. Without that, her keeping with intent to sell or furnish was necessarily and inevitably criminal. If the facts alleged are true, there is no supposable condition under which she could be innocent.

The respondent was appraised with such reasonable certainty of the cause and nature of the accusation as to enable her intelligently to prepare her defence, and to avail herself of a conviction or acquittal as a protection should she subsequently be accused on the same grounds, and none of her constitutional rights were infringed.

The foregoing views are predicated upon the...