State v. Benedict , 11 Vt. 236 ( 1839 )

The opinion of the court was delivered by

Rebeield, J.

Whatever was once thought upon the subject, it is now well settled, that mere threats, in words not written, is not an indictable ¿offence at common law. It is said, in many of the books, that it was formerly indictable. This might have been, and probably was the case at the time the statute, in this state, in relation to the subject, was passed. It is there said “if any person shall, in any manner, disturb or break the peace, by tumultuous and offensive carriage, by threatening, quarrelling, challenging, assaulting, beating or striking any other person,” he shall be liable, on conviction, to pay such fine as “the court, taking into consideration the situation of the party smiting or being smitten, the instrument and danger of the assault, the time, place and provocation, according to the nature of the offence, shall adjudge.”

The phraseology of this statute would seem to indicate, with sufficient distinctness, that threatening was one of the modes of disturbing the public peace, which was intended to be punished criminally. Seven modes of disturbing the public peace are enumerated, for any one of which it is provided the offender shall pay such fine as the court shall adjudge. Had the statute left the matter here, no doubt could have arisen in relation to its import. It is absurd to suppose that any court, in assessing a fine, should not regard the enormity of the offence in all its essential circumstances._ But out of over caution it seems that is made an express requisition of the statute. And to prevent all misapprehension, the circumstances of aggravation or excuse are enumerated.. And it is said, these circumstances do not include threatening or any of its forms, but exclude it. It will not so appear on close examination. The subdivisions of the offence begin with the least considerable, “tumultuous and offensive carriage,” and go forward throughout the chain in a direct climax. Whereas, in enumerating the peculiar characteristics of enormity or excuse attending the several subdivisions of the offences, the statute begins with the highest grade, i. e. “smiting,” &c., and proceeds throughout the degrees in an anticlimax. In this enumeration of the circumstances to be considered by the court in fixing the extent of the fine, only battery and assault are specifically named. The statute then concludes in general terms, “the time, place and provocation” which must, of course, refer to each of the seven species of offence defined in the enacting clause; and last of all, “according to the nature of the offence shall be adjudged.”— What offence? Why, surely, a breach of the public peace in any one of the modes named.

It is not necessary to inquire how far threats were punishable at common law, for the offence is here defined by statute. Any threats, which disturb the public peace, are made an offence. But what is the public peace ?— Almost every one has some more or less certain notion of the public peace, and still it may not be very easy to define it in words. It is, so to speak, that invisible sense of secu- , rity, which every man feels so necessary to his comfort, and) for which all governments are instituted. A threat, in order to violate this sense of security, must be of some grievous bodily harm, must be put forth in a desperate and reckless manner, accompanied by acts showing a formed intent to execute them, must be intended to put the person threatened in fear of bodily harm, and must produce that effect, and must be of a character calculated to produce that effect upon a person of ordinary firmness. Threats of this character were no doubt intended to be made an offence and it would do manifest violence to the statute not so to decide.

The mere fact that such threats are not now considered an indictable offence at common law, can have but little weight in the argument. At the time the statute was passed this was considered doubtful, and the statute was made thus specific to relieve that doubt.

There is another reason why here, more than at common law, mere threats should be considered an offence punishable by indictment. At common law the person threatened can swear the peace against the offender, and obtain redress in that way, by obtaining security against the commission of the offence threatened. This mode of preventive justice has not been much resorted to, if, indeed, it exists in this state. It is believed the legislature intended the remedy here given to supersede its necessity. The sending of threatening letters is an offence of a different character.

Judgment, that the respondent take noílúng by his exceptions, and that he pay a fine of $10, to the treasurer of the state, and costs of prosecution, &c.

Bennett, J., dissenting.