State v. Nutting , 16 Vt. 261 ( 1844 )

The opinion of the court was delivered by

Williams, Ch. J.

On the petition of the prisoners an information was filed against them by the state’s attorney for stealing two horses, a saddle, and bridle; the information contained one count only. It does not appear that there was any misjoinder. Our present statute making horse stealing larceny, the question, which arose under our former statute in relation to joining in one indictment horse stealing and simple larceny, probably does not now arise.

The jury found the prisoners guilty of stealing the saddle only, and not guilty as to the other articles, and found the value of the saddle to be two dollars and twenty five cents. A motion was then made by the prisoners, called in the exceptions a motion in arrest, but in reality a motion to dismiss for want of jurisdiction. All larcenies, when the value of the property stolen exceeds seven dollars, must, be prosecuted by indictment, unless the prisoners, being in custody, request that an information may be filed by the state’s attorney ; and on conviction, they mayffie sentenced to confinement in the state’s prison for a term not exceeding seven years. Where the property is of less value than seven dollars, the offence is within the jurisdiction of a justice of the peace, who may sentance the prisoner, on conviction, to imprisonment in the county jail. The county court have no jurisdiction over criminal offences which are cognizable before a justice. As it is not always easy to determine the value of articles stolen, or of stealing how many of the articles charged the prisoner may be found guilty, it would have been better to have given the county court concurrent jurisdiction, and require them, if the value of the property is under seven dollars, to sentence only to such punishment, and award only such cost, as would have been imposed if the prosecution had been before a justice. This, however, is for legislative action. A jury cannot acquit entirely, when the value of the property is not sufficient to give jurisdiction to the county court.

It was decided, in the case of the State v. Carr, 13 Vt. 571, that the question of jurisdiction, when the prosecution is before the county court, can only be determined by the court on a distinct motion, or traversable plea; — and this I think should be done before a trial is had on the plea of not guilty. In some cases, however, — and the case under consideration is one, — the question could not be presented before trial, without involving the whole circumstances attending the transaction, and the extent of the prisoner’s guilt. Whether the prisoners, in the case before us, took all the articles of property charged in the information feloniously, or whether they took part of them feloniously, and the other without being guilty of any crime, could not be ascertained, until a trial of the case was had. The jury have determined the degree of their guilt, by acquitting them in respect to all the articles, except a saddle of the value of $2.25. This was an offence within the jurisdiction of a justice, and should subject the offenders to no other punishment than a justice could inflict; it was not within the jurisdiction of the county court, and the prisoners availed themselves of the first and only opportunity to present this to the consideration of the court. We are of opinion that they were entitled to the benefit of their motion, and. that the county court should have dismissed the cause. The judgment of the county court is therefore reversed, and the cause must be dismissed for want of original jurisdiction in the county court.