State v. Persons.

• Decision Date: 07 May 1946
• Docket Number: No. 300.,300.
• Citation: 46 A.2d 854
• Court: Vermont Supreme Court
• Parties: STATE v. PERSONS.

46 A.2d 854

STATE

v.PERSONS.

No. 300.

Supreme Court of Vermont.

May 7, 1946.

Exceptions from Municipal Court of Caledonia; Melvin G. Morse, Presiding Judge.

Milo Persons was convicted of unnecessarily failing to provide cattle with proper food and drink, and he brings exceptions.

Exceptions overruled and judgment affirmed.

Clifton L. Drew, State's Atty., of Lyndonville, for plaintiff.

Raymond L. Miles, of Newport, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, and STURTEVANT, JJ., and CLEARY, Superior Judge.

BUTTLES, Justice.

This is a criminal prosecution tried in Caledonia Municipal Court under an information which charges that the respondent on March 1, 1945, ‘did unnecessarily fail to provide (certain described cattle) with proper food and drink’, in the language of one part of P.L. 8500. The respondent was convicted and the case is here on his exceptions.

Before the jury was sworn the respondent moved to quash the information on the ground that it did not inform the respondent of the character and nature of the offense charged so as to enable him adequately to prepare his defense, and also that the part of the statute which is the basis of the information is so uncertain and indefinite that the respondent is deprived of due process of law.

His brief raises the question of the sufficiency of the information under the common law and under Chap. 1, Art. 10 of the Vermont constitution. It is sufficient to charge a statutory offense in the words of the Act if every fact necessary to constitute the offense is charged or necessarily implied by following such language. But if, from the nature of the offense, the words of the statute do not clearly and definitely apprise the respondent of the offense charged against him greater particularity must be used. The complaint or information must set forth the charge with such particularity as will reasonable indicate the offense of which the respondent is accused, and enable him intelligently to plead the judgment if subsequently prosecuted for the same offense. State v. Wersebe, 107 Vt. 529, 532, 181 A. 299; State v. Van Ness, 109 Vt. 392, 399, 199 A. 759; State v. Gosselin, 110 Vt. 361, 365, 6 A.2d 14.

An information may be defective under the common law and under the state Constitution because it fails to specify which definite offense is charged when there are several such offenses to which the words used may apply. State v. Van Ness, 109 Vt. 392, 400, 199 A. 759; State v. Villa, 92 Vt. 121, 123, 102 A. 935. So, too, when it is not the act itself but the manner in which it is done that makes it criminal, the manner becomes a constituent part of the offense and must be set forth. State v. Aaron, 90 Vt. 183, 185, 97 A. 659.

P.L. 8500 penalizes cruelty to animals when inflicted in various ways, but only one such way is specified in the information in this case, viz., unnecessarily failing to provide the animals with proper food and drink. The words ‘unnecessarily’ and ‘proper’ are to be understood in their ordinary sense, and as here used can only mean that while the respondent could have provided such food and drink he failed to do so. We construe ‘proper’ to be such. food and drink as are required to preserve the health of the animals. ‘To say that the amount of food and water to be given them, or the times at which they must be fed and watered should be stated in the information would be to insist on that unreasonable particularity which the rule does not require’. From what has been said it is apparent that the portion of P.L. 8500 upon which the information is based is not so uncertain and indefinite as to support the respondent's objection that he is deprived of due process of law. The motion to quash was properly denied.

Russell A. Wheelock, a State's witness, being asked whether the cattle in question appeared strong, answered, subject to the respondent's exception: ‘Being where I have seen other cattle at my own home I would say no.’ The respondent then moved that the answer be stricken out as not responsive, and excepted to the denial of the motion. The witness had testified that on March 1 he went into respondent's stable and saw some of the cattle as they were driven in; that he had an opportunity to observe their walk as they came from one stable to the other and they walked in a halting manner. As a general rule witnesses are to state facts and not give their inferences or opinions; but this rule is subject to the exception that where the facts are of such a character as to be incapable of being presented with their proper force to anyone but the observer himself, so as to enable the trier to draw a correct or intelligent conclusion from them without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed, to a certain extent, to add his conclusion, judgment or opinion. Johnson v. Cone, 112 Vt. 459, 465, 28 A.2d 384, and cases cited.

This rule has been applied to a wide variety of subjects including age, size, distance, mental and physical appearance, weight, identity and duration of time. Fowlie's Adm'x v. McDonald, Cutler & Co., 82 Vt. 230, 237, 72 A. 989. In State v. Ward, 61 Vt. 153, 181, 17 A. 483, it was held applicable, under the circumstances, to testimony that a horse seemed tired. In the present case the foundation laid by preliminary examination of the witness was clearly as extensive as the situation permitted and...