State v. Van Ness, No. III.

Docket NºNo. III.
Citation199 A. 759
Case DateMay 03, 1938
CourtUnited States State Supreme Court of Vermont
199 A. 759

STATE
v.
VAN NESS.

No. III.

Supreme Court of Vermont. Bennington.

May 3, 1938.


199 A. 759

deal with the situation presented where a person in full enjoyment of his liberty is committed to the Vermont State hospital for the insane without notice or hearing, an entirely different situation than that with which we are dealing here, hence those cases are not in point. It follows from the foregoing that the transfer of the petitioner from the State prison to the said hospital was legal and therefore;

It is adjudged that the petitioner is not illegally deprived of his liberty and he is remanded to his former custody, viz., into the custody of the Superintendent of the Vermont State hospital for the insane at Waterbury in the County of Washington and State of Vermont; and his petition is dismissed.

199 A. 760

[Copyrighted material omitted.]

199 A. 761

Exceptions from Bennington County Court; Alfred L. Sherman, Judge.

Edward Van Ness was convicted of selling intoxicating liquor and of keeping intoxicating liquor with intent to sell, his motion in arrest of judgment was overruled, and he brings exceptions.

Judgment reversed, motion in arrest sustained, judgment arrested and accused discharged as to certain counts, and judgment affirmed as to other counts.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Jerome, Graves & Graves, of Bennington, for respondent. Alban J. Parker, Deputy Atty. Gen., and George H. Plumb, State's Atty., of Bennington, for the State.

POWERS, Chief Justice.

On October 23, 1937, the State's attorney of Bennington County by an information in three counts prosecuted the respondent in the Bennington municipal court for selling intoxicating liquor on three specified dates. The respondent appeared, pleaded not guilty, and was released on bail. Thereafter and on December 15, 1937, the State's attorney nol prossed the information pending in the municipal court, and a record thereof was made by that court. On December 16, 1937, the State's attorney filed an information' in the county court charging the respondent with the identical offenses of selling above set forth, and included therein a fourth count charging the respondent with keeping intoxicating liquor with intent to sell the same on October 23, 1937. The respondent was arraigned in the county court, pleaded not guilty, and was released on bail. On December 24, 1937, the respondent filed a plea setting up the facts regarding the prosecution in the municipal court and insisting that the county court could not exercise its concurrent jurisdiction because the jurisdiction of the municipal court having once been invoked prior to the proceedings in the county court it was and continued to be exercised as to the charges of selling. The plea of not guilty still stood on the docket, but on January 11, 1938, it was, by leave of the court, withdrawn and stricken off. The respondent then filed an amended plea based upon the same grounds as are above specified. To the special plea, as amended, the State demurred. The demurrer was sustained and the respondent excepted. Then the respondent renewed his plea of not guilty and the case went to trial before a jury. A verdict of guilty was returned on each of the four counts. The respondent then moved in arrest of judgment on the ground that the information was insufficient to support a judgment. This motion was overruled, and the respondent excepted. In other ways the respondent attempted to raise the same questions as were covered by the foregoing exceptions, but special consideration of these is not required. Judgment on the verdict was rendered on January 21, 1938, and the respondent was sentenced to be confined in the state prison for the term of not less than four and one-half months and not more than five months on each of the four counts and it was ordered that the sentences should run concurrently.

It is a little difficult to understand why the respondent is here, because the count for keeping with intent to sell was never in the municipal court, and the special plea does not cover it. So if he prevails to the full extent of his claims, the most that can be done for him will be to reverse the judgment and vacate the sentences on the three counts for selling, leaving the judgment and sentence on the count for keeping. His imprisonment would be for exactly the same time, though for only one of the four charges made against him.

The respondent contends that the county court could not exercise its jurisdiction in this case, because the municipal court had already taken jurisdiction of it and that the jurisdiction of the latter court was exclusive and continuous until the specific charges made against the respondent were finally determined. In support of his contention, he calls attention to 16 C.J. 437, where it is said: "The State

199 A. 762

cannot, after filing a complaint or information in a court having jurisdiction, enter a nolle prosequi and file an indictment or information charging the same crime in another court having concurrent jurisdiction." The cases cited in support of this statement, so far as now accessible, justify it. However, we are not impressed with their reasoning and are not content with their conclusion. The rule adopted seems to us to be unnecessarily and unreasonably restrictive. To us, it seems quite enough to answer the requirements of politeness and policy, to hold that the court which first acquires jurisdiction of a matter is entitled to exclusive' authority over it as long as it is pending before it in any of its aspects. But when the jurisdiction of that court comes to an end in any legal way and the matter is no longer before it, then if another prosecution can be brought anywhere, it may be brought in another court of competent jurisdiction.

The subject under discussion is not wholly unfamiliar to this court. A very important phase of it was involved and discussed in Bank of Bellows Falls v. Rutland & Burlington Railroad Co., 28 Vt. 470. That was a proceeding in equity wherein the plaintiff sought to restrain the defendants from prosecuting an action at law then pending in a court of competent jurisdiction in the State of Massachusetts. Judge Bennett, speaking for the court (page 477) says: "We hold it to be a sound rule of law, based upon the most salutary principle, that in all cases of concurrent jurisdiction, the court that has first possession of the matter should be left to decide it * * *." But the case holds that in a proper case a court of equity has the power to stay a party from proceeding at law in a foreign court or in a court of a sister state, and would exercise the power in a case where the ends of justice require it, notwithstanding the courtesy which should be maintained between courts. It was considered that the case then in hand was not a proper case for equitable interference. The law of Judge Bennett's opinion has been accepted at home and abroad as sound and authoritative. Its significance and importance here lies in the fact that it appears to follow the rule so far as stated therein, but does not consider it one that is to be given unyielding effect in all cases.

The rule was approved and applied in Whittler v. McFarland, 79 Vt. 365, 369, 65 A. 81, but only to the extent above stated. That was a petition for the custody of a minor child between the divorced parents. It was considered that, by the terms of the statute, the jurisdiction of the county court by which the divorce was granted was continued for such further decree respecting the child as it might deem expedient. It was held that in these circumstances habeas corpus could not be availed of to determine the custody.

The rule was referred to with apparent approval in Re Dawley, 99 Vt. 306, 324, 131 A. 847, but the case before the court did not require a discussion of it in any aspect here involved.

State v. Stanley, 82 Vt. 37, 71 A. 817, was an information filed in the county court for cruelty to animals. The respondent filed a motion to dismiss the information because proceedings had been had before a justice of the peace for the same offense, in which the justice bound him over instead of disposing of the case. The...

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15 practice notes
  • Theodore v. State, No. 550
    • United States
    • Supreme Court of Alaska (US)
    • October 28, 1965
    ...Bottom v. State, 155 Ark. 113, 244 S.W. 334 (1922). 5 220 S.C. 178, 66 S.E.2d 701, 705 (1951). 6 See also State v. Van Ness. 109 Vt. 392, 199 A. 759, 117 A.L.R. 415, 419 (1938). The court in Van Ness stated in Then, too, the rule is one that a respondent may waive, and he does waive it unle......
  • State v. Clayton, No. 363
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 25, 1959
    ...Tex.Crim.Rep.[251 N.C. 266] 610, 6 S.W.2d 757; Epps v. State (1936) 130 Tex.Crim.Rep. 398, 94 S.W.2d 441; State v. Van Ness [109 Vt. 392, 199 A. 759, 117 A.L.R. 415] ante, 415. See also United States v. Jones (1926) 7 Alaska, 378; State ex rel. Mitchell v. Court of Coffeyville (1927) 123 Ka......
  • State v. Persons, No. 238
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 5, 1953
    ...in all cases. It does not apply where the jurisdiction of the first court has come to an end. State v. Van Ness, 109 Vt. 392, 397-399, 199 A. 759, 117 A.L.R. The respondent claims that this Court remanded the case to the Caledonia municipal court and this necessitates a new trial there in o......
  • State v. Persons., No. 300.
    • United States
    • May 7, 1946
    ...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 ......
  • Request a trial to view additional results
15 cases
  • Theodore v. State, No. 550
    • United States
    • Supreme Court of Alaska (US)
    • October 28, 1965
    ...Bottom v. State, 155 Ark. 113, 244 S.W. 334 (1922). 5 220 S.C. 178, 66 S.E.2d 701, 705 (1951). 6 See also State v. Van Ness. 109 Vt. 392, 199 A. 759, 117 A.L.R. 415, 419 (1938). The court in Van Ness stated in Then, too, the rule is one that a respondent may waive, and he does waive it unle......
  • State v. Clayton, No. 363
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 25, 1959
    ...Tex.Crim.Rep.[251 N.C. 266] 610, 6 S.W.2d 757; Epps v. State (1936) 130 Tex.Crim.Rep. 398, 94 S.W.2d 441; State v. Van Ness [109 Vt. 392, 199 A. 759, 117 A.L.R. 415] ante, 415. See also United States v. Jones (1926) 7 Alaska, 378; State ex rel. Mitchell v. Court of Coffeyville (1927) 123 Ka......
  • State v. Persons, No. 238
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 5, 1953
    ...in all cases. It does not apply where the jurisdiction of the first court has come to an end. State v. Van Ness, 109 Vt. 392, 397-399, 199 A. 759, 117 A.L.R. The respondent claims that this Court remanded the case to the Caledonia municipal court and this necessitates a new trial there in o......
  • State v. Persons., No. 300.
    • United States
    • May 7, 1946
    ...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 ......
  • Request a trial to view additional results

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