State v. P. W. Perkins
| Decision Date | 14 October 1914 |
| Citation | 92 A. 1,88 Vt. 121 |
| Parties | STATE v. P. W. PERKINS |
| Court | Vermont Supreme Court |
October 14, 1914
INFORMATION for becoming a dealer in evergreen trees without first procuring a license therefor. Heard first on respondent's demurrer to the information, at the March Term, 1913, Washington County, Fish, J., presiding. Demurrer overruled and information adjudged sufficient, to which the respondent excepted. Thereupon he pleaded, not guilty. Trial by jury. At the close of all the evidence, the respondent moved for a directed verdict. Motion overruled, to which he excepted. Verdict, guilty; and judgment thereon, subject to the respondent's exception. The opinion fully states the case.
Judgment and sentence reversed and cause remanded.
Richard A. Hoar for the respondent.
J Ward Carver, State's Attorney, for the State.
Present POWERS, C. J., MUNSON, WATSON, HASELTON AND TAYLOR, JJ.
The respondent was informed against under P. S Chap. 217 No. 170 Acts of 1910 for becoming a dealer in evergreen trees without first procuring a license therefor. There was trial by jury at the March Term, 1913, of Washington County Court and a verdict of guilty and judgment thereon with exceptions reserved by the respondent.
The information is in six counts and charges distinct offences, four in Waterbury in Washington County and two in Duxbury in said County, all alleged as having been committed in November, 1912. The statute on which this prosecution is based was repealed by No. 185, Acts of 1912, approved Feb. 21, 1913, and taking effect from its passage; but the repealing act excepted offences committed prior to Feb. 21, 1913, and "causes, proceedings or penalties based thereon."
Before trial the respondent filed both a general and a special demurrer to the information. There was a hearing on the demurrers, which were overruled and an exception allowed the respondent. Thereupon a jury was empanelled and the trial proceeded.
The respondent's exception to the action of the court in overruling his demurrer is available notwithstanding his pleading over. This being a criminal case he has not thereby waived his right to insist upon his demurrer. State v. Bosworth, 74 Vt. 315, 52 A. 423. The case does not show how it happened that two demurrers were filed. No specification of the grounds of demurrers relied upon was filed with the general demurrer as required by the rules of the county court (rule 10, sec. 3); and the so-called special demurrer presents no ground that would not have been reached by general demurrer with specifications under the rule. The hearing below was on the grounds assigned in the special demurrer. It is probable that the so-called special demurrer was intended as a specification of the grounds of demurrer required by the rule and will be so treated.
The several counts of the information are identical except as to time and place. In each it is alleged that the respondent on a day named at a place named did become a dealer in evergreen trees without first procuring a license therefor. Six grounds of demurrer are assigned but all come to the same question, viz.: whether it is necessary to set forth the facts constituting this offence further than to charge that the respondent became a dealer in evergreen trees without license.
P. S. 5012, as amended, provided: "A person, firm or corporation that buys or sells in any year more than twenty evergreen trees less than seven inches in diameter at the butt as cut, not grown upon his own land, shall be deemed a dealer in evergreen trees." P. S. 5013 provided: "A person, firm or corporation shall, before becoming a dealer in evergreen trees procure a license therefor as provided in this chapter." In other sections the statute provided how the license shall be secured and the fees therefor. Sec. 5 of No. 170, Acts of 1910, provided: "A person, firm or corporation that becomes a dealer in evergreen trees without procuring a license therefor as provided in this act * * * shall be fined not more than three hundred dollars, and each transaction of purchase or sale shall constitute a distinct offence."
Thus it is seen that one section of the statute provided who should be deemed a dealer in evergreen trees and another section penalized the becoming such dealer without license. The State contends that the offence being statutory it is sufficient to charge the offence in the language of the section of the statute providing the penalty. While it is true that an indictment or information for a statutory offence is sufficient if it follows the language thereof when every fact necessary to constitute the offence is charged or necessarily implied by following such language (State v Bannister, 79 Vt. 524, 65 A. 586). the converse is equally true that it is not sufficient to pursue even the very words of the statute unless by so doing you fully, directly and expressly allege the fact or facts in the doing or not doing whereof the offence consists. State...
To continue reading
Request your trial