State v. White

• Decision Date: 21 April 1892
• Citation: 24 A. 250,64 Vt. 372
• Parties: STATE v. E. H. WHITE
• Court: Vermont Supreme Court

24 A. 250

64 Vt. 372

STATE v. E. H. WHITE

Supreme Court of Vermont

April 21, 1892

JANUARY TERM, 1892

Information for being found intoxicated. Plea, not guilty. Trial by jury at the April term, 1891, Thompson, J presiding. Verdict, guilty. Exceptions by the respondent. The case appears in the opinion.

Exceptions not sustained, judgment on verdict, sentence passed, and execution thereof ordered.

V A. Bullard, for the respondent.

OPINION

ROWELL

After plea pleaded and jury sworn, the prisoner moved to dismiss the information, for that the time alleged therein as the day of the intoxication complained of was more than thirty days before the information was exhibited in court. Thirty days is the period of limitation for prosecuting the offence. The court overruled the motion and allowed the State to amend the information by changing the allegation of time from the 15th of April to the 30th of May a time within the statutory period, and the day of the commission of the offence; and the question is, whether that amendment was allowable. We have not considered whether the amendment was necessary nor whether it was authorized by statute, but only whether it was authorized by the common law. No claim is made that it was out of time, but only that the court had no power to make it.

That the body of indictments cannot be amended at common law, is beyond doubt. Ex Parte Bain, 121 U.S. 1, and cases there cited. But there is a great difference between amending indictments and amending informations, and the reason is this, as stated by Lord Mansfield in the great case of Rex v. Wilkes, 4 Burr. 2569 "Indictments are found upon the oaths of a jury, and ought to be amended only by themselves; but informations are as declarations in the King's suit. An officer, of the Crown has the right of framing them originally, and may, with leave, amend in like manner as any plaintiff may do." In that case the prisoner, having been convicted by a jury of having printed and published a seditious and scandalous libel, was brought up before the King's Bench on a motion for a new trial on account of amendments made in the body of the information on which he was tried. The amendments were made at Lord Mansfield's chambers after a plea of not guilty, and after the record was made up and sealed and the case ready for trial; and they consisted in changing the allegations that the libel contained matter "to the purport," etc., to allegations that it contained matter "to the tenor," etc. Numberless precedents were produced from the time of Queen Elizabeth, and all through the reigns of James II, and Charles II., and many side-bar rules, which showed that it was of course, because, it was said, if not of course, it would have been moved in court, as everything not of course is. Mr. Justice Willes said the amendments were justified by an uninterrupted series of precedents from the time of William III, at least. Lord Mansfield said that whether it was necessary to amend or not he gave no opinion nor formed any. In The King v. Harris, 1 Salk. 47, motion was made to amend an information of perjury, and opposed, because the defendant had pleaded. Holt, C. J., said: "As to mending after plea pleaded, there is no great matter in that. After a record has been sealed up I have known it amended, even just as it was going to be tried." Sir Bartholomew Shower moved to amend an formation of forgery in ten places, and though opposed the motion was granted by the King's Bench because it did not alter the fact, and that without costs or imparlance. Anonymous 1 Salk. 50. In Rex v. Nixon, 1 Strange 185, the court refused to quash...