State v. Monti

• Decision Date: 10 November 1916
• Citation: 90 Vt. 566,99 A. 264
• Parties: STATE v. MONTI.
• Court: Vermont Supreme Court

99 A. 264

90 Vt. 566

STATE

v. MONTI.

Supreme Court of Vermont. Washington.

Nov. 10, 1916.

Exceptions from City Court of Montpelier; Edwin M. Harvey, Judge.

Mary Monti was convicted of keeping intoxicating liquors with intent to sell or furnish them illegally, and excepts to overruling of her motion in arrest of judgment. Execution ordered.

Argued before MUNSON, C. J., and HASELTON, POWERS, and TAYLOR, JJ.

Fred E. Gleason, State's Atty., of Montpelier, for the State. Theriault & Hunt, of Montpelier, for respondent.

POWERS, J. 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 offense under this statute unless he actually sells or furnishes. So far then, as here involved, the statute creates but one offense, 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 Atl. 201, as follows:

"A negative averment may be in the words of the statute, or it may be in words of equivalent meaning. Any negation 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 apprised with such reasonable certainty of the cause and nature of the accusation as to enable her intelligently to prepare her defense,...