State v. Solomon Waite

• Decision Date: 02 May 1933
• Citation: 166 A. 4,105 Vt. 265
• Parties: STATE v. SOLOMON WAITE
• Court: Vermont Supreme Court

166 A. 4

105 Vt. 265

STATE v. SOLOMON WAITE

Supreme Court of Vermont

May 2, 1933

January Term, 1933.

Fish and Game---Complaint as to Illegal Fishing---G. L. 6375, as Amended by Acts 1931, No. 141---"Close Season"---Office of Videlicit---Purpose of Statute Relating to Fishing---Criminal Law---Essentials of Criminal Complaint---Complaint as to Illegal Fishing Held To Set Forth Essential Elements of Offense---Formal Defects in Criminal Proceedings---Power of Supreme Court To Grant Repleader upon Adjudging Criminal Complaint Sufficient---Facts in Particular Case Held To Justify Granting Right To Replead.

1. Complaint, based on G. L. 6375, as amended by Acts 1931, No 141, providing fine for one taking brook trout between two hours after sunset and one hour before sunrise, and also for one who during close season for brook trout fishes in waters inhabited by them, charging respondent at time and place named with fishing in water inhabited by brook trout "during close season for said brook trout, to wit between two hours after sunset and one hour before sunrise," held not subject to demurrer "close season," as used in such statute meaning that period of time when fishing is prohibited.

2. Office of restrictive and explanatory videlicit is to particularize and make clear general terms just before used.

3. Dominant purpose of G. L. 6375, as amended by Acts 1931, No. 141, is to protect certain fish, brook trout included, from night fishing.

4. Criminal complaint must set forth all essential elements of offense sought to be charged with sufficient clearness and directness to enable respondent intelligently to meet accusation, and, if convicted, successfully to protect himself from any attempt to prosecute him again for same offense.

5. Complaint, based on G. L. 6375, as amended by Acts 1931, No. 141, providing fine for taking brook trout between two hours after sunset and one hour before sunrise, and also for one who during close season for brook trout fishes in waters inhabited by them, held, sufficiently to set forth essential elements of offense charged.

6. Supreme Court pays less attention than formerly to formal defects in criminal proceedings, and such defects, if any, should be corrected by lower court.

7. Supreme Court, adjudging complaint sufficient on demurrer, has power in its discretion to grant or deny repleader.

8. Where Supreme Court affirmed action of trial court in overruling demurrers to complaint charging illegal fishing in violation of G. L. 6375, as amended by Acts 1931, No. 141, and general demurrer called in question matters of substance and importance, held that respondent should be allowed to replead.

COMPLAINT under G. L. 6375, as amended by Acts 1931, No. 141, charging respondent with illegal fishing. Respondent filed general and special demurrers to complaint. Hearing by Bennington municipal court, Samuel H. Blackmer, Municipal Judge, presiding. Demurrers overruled, and complaint adjudged sufficient. The respondent excepted. The opinion states the case. Exceptions overruled, judgment affirmed, and cause remanded with directions.

Exceptions overruled, judgment affirmed, and cause remanded for disposition on such plea as the respondent may enter to the merits of the charge brought against him.

Cebra Q. Graves for the respondent.

Norton Barber, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

POWERS

The respondent was charged in the Bennington municipal court with illegally fishing in waters inhabited by brook trout. By general and special demurrers he challenged the sufficiency of the complaint, and brings the case here for review on exceptions to the overruling of his demurrers.

The charge is based on G. L. 6375, as amended by No. 141, Acts of 1931, which provides, among other things, that one who takes brook trout between two hours after sunset and one hour before sunrise shall be fined. It also provides that one who, during the close season for brook trout, fishes in waters inhabited by them, shall be fined.

The complaint charges that the respondent, at a time and place named, "fished in water inhabited by brook trout during the close season for said brook trout, to wit, between two hours after sunset and one hour before sunrise," etc. The most important questions raised by the respondent's demurrers relate to the term "close...