State v. Parker
| Decision Date | 06 March 1963 |
| Docket Number | No. 1169,1169 |
| Citation | 123 Vt. 369,189 A.2d 540 |
| Parties | STATE of Vermont v. Herbert G. PARKER. |
| Court | Vermont Supreme Court |
John A. Rocray, State's Atty., Brattleboro, for plaintiff.
Kissell & Kissell, Bellows Falls, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
This is a prosecution under the provisions of 23 V.S.A. § 1183, which reads in part as follows: 'A person shall not operate or attempt to operate a motor vehicle while under the influence of intoxicating liquor or drugs.' The case was tried by jury before the Bellows Falls Municipal Court. The jury returned a verdict of guilty. This was followed by respondent's motion to set aside the verdict, and also a motion in arrest of judgment. These motions were overruled and judgment was entered on the verdict. The respondent has appealed to this Court.
The complaint charges that the respondent at a time and place named, did 'then and there operate or attempt to operate a motor vehicle * * * while under the influence of intoxicating liquor, * * *.'
In our disposition of this case we need only consider the motion in arrest of judgment. The respondent's motion to set aside the verdict challenges the legal sufficiency of the complaint, and contains, in substance, the same grounds as set forth in the motion to arrest of judgment. The sufficiency of the complaint could not be raised by the motion to seat aside the verdict. Such a motion is in the nature of a demurrer to the evidence and brings before the court the question of the sufficiency of the evidence to support the allegations of the complaint, but not the sufficiency of the allegations in law. On this point it is akin to a motion for a directed verdict. Dashnow v. Myers, 121 Vt. 273, 278, 155 A.2d 859. See State v. Ball, 119 Vt. 306, 308, 309, 126 A.2d 121; State v. Cocklin, 109 Vt. 207, 215, 216, 194 A. 378.
After verdict, a proper way to reach a defective complaint is by motion in arrest of judgment. State v. Gosselin, 110 Vt. 361, 365, 6 A.2d 14.
The assignment of error set forth in the respondent's motion in arrest of judgment is to the effect that the complaint is fatally defective in that it charges the commission of offenses in the alternative or disjunctive form, by alleging that the respondent did then and there 'operate or attempt to operate' a motor vehicle on the public highway while under the influence of intoxicating liquor. To this end, he urges that the complaint fails to meet the standard required by Chapter 1, Art. 10 of the Vermont Constitution.
This Article of the State Constitution provides, that 'in all prosecutions for criminal offenses, a person hath a right * * * to demand the cause and nature of his accusation.' In referring to this provision this Court, in the case of State v. Margie, 119 Vt. 137, 141, 120 A.2d 807, 810, made this statement.
It is not a second jeopardy for the same act, but a second jeopardy for the same offense that is prohibited. State v. O'Brien, 106 Vt. 97, 104, 170 A. 98. By statutory enactment a person shall not be held to answer on a second complaint, information or indictment for an offense of which he was acquitted by a jury upon the merits on a former trial. 13 V.S.A. § 6556.
Where one offense is a necessary element in, and constitutes a part of another, and both are in fact but one...
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Duffy v. State, 87-160
... ... "[T]he same act may constitute two separate crimes, and, if they are not so related that one of them is a constituent part, or necessary element, in the other, so that both are in fact one transaction, a prosecution and conviction may be had for each offense." State v. Parker, 123 Vt. 369, 371, 189 A.2d 540, 541-42 (1963) ... See also State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988), where robbery and larceny could not be divided to create two separately ... Page 843 ... punishable crimes and Vines v. United States, 540 A.2d 1107 ... ...
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State v. Ramsay, 83-359
...Vermont common law, nor did he assert that Vermont's protection is broader than the Fifth Amendment's. See, e.g., State v. Parker, 123 Vt. 369, 371, 189 A.2d 540, 541 (1963) (double jeopardy prohibition applies to same offense rather than same act); State v. Pianfetti, 79 Vt. 236, 246, 65 A......
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...conviction in a subsequent prosecution for the same offense.' State v. Cliffside, Inc., 120 Vt. 265, 266, 138 A.2d 310, States v. Parker, 123 Vt. 369, 371, 189 A.2d 540. 13 V.S.A. § 2401, reads in 'A person who, without legal authority, forcibly or secretly confines or imprisons another per......
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...then a prosecution may be had for each offense. State v. Poirier, 142 Vt. 595, 598, 458 A.2d 1109, 1111 (1983); State v. Parker, 123 Vt. 369, 371, 189 A.2d 540, 541-42 (1963). The offense of reckless endangerment is committed when "[a] person ... recklessly engages in conduct which places o......