State v. Nutt , 28 Vt. 598 ( 1856 )

The opinion of the court was delivered, at the circuit session in October, by

Bennett J.

At the December Term of the county court, 1854) the respondent was indicted by the grand jury of the county in divers counts, for selling intoxicating liquor without license. On the trial of the case before a traverse jury, upon the plea of not guilty, the respondent gave in evidence a record of his former conviction of being “ a common seller;”, and the case finds that it was conceded, on trial, that the breaches of the law found by the grand jury, and presented in said indictment, were all prior to said conviction; and, as the case has been argued, prior to the praying out the complaint, upon which the conviction was had, the complaint having been prayed out the first day of November, 1854, and the conviction and sentence of the court on the sixth. We shall dispose of the case upon the hypothesis assumed by the counsel on both sides ; that is, upon the ground that all the offences found by the grand jury were prior in time to the praying out the complaint, upon which the conviction, as “ a common seller,” was had, which no doubt was the fact. No question was made below as to the admissibility of the record under the general issue; but the question as to its legal effect, accompanied with the admission made by the counsel for the state, was the point submitted; and their decision upon the point submitted, is what we are to revise. We think the court erred in holding that the matter given in evidence was but a prima facie defense to the prosecution.

The complaint charged that the respondent did become “ a common seller of, and at divers times did sell, furnish, or give away intoxicating liquor, &c.” It was evidently drawn under the 5th section of the act of 1852; and the conviction was for being “ a common seller,” by virtue of the 18th section of the same act. That section prescribes the form of a complaint under the different sections. The form under the 5th section, charges, “ a selling, furnishing, or giving away, at divers times, intoxicating liquor, without authority, &cand at the close of the 18th section it is provided, that under a complaint under the 5th section, every distinct act of selling, furnishing, or giving away, may be proved, and the court may impose a fine for each offence ; or if the number exceed five, the respondent may be adjudged “ a common seller,” and be subjected to the penalties provided in the 9th section in the case of a “ common seller.”’ The offence of “ a common seller” consists in a frequent repetition of the act of selling without authority; and upon common principles, there must be such a continuation, or rather repetition of unlawful sales, as would prove the allegation, in the complaint, of being a common seller. The 18th section of the act of 1852, however, provides that any number of sales, exceeding five, may subject a person to be adjudged “ a common seller.” The offence of being “ a common seller,” is but one, and is an entire offence ; and it may be necessary to prove all of the several and distinct acts of sale which the party has been guilty of, to make out the offence, or a less number may suffice; but we 'think if a respondent is charged with being “ a common seller,” and is convicted and sentenced for that offence, it must be a conclusive bar, up to the time the complaint is made, to any prosecution, grounded upon any one act of sale prior to that time, whether it was proved or attempted to be proved on the trial or not. The several sales are constituent parts of one offence, and one too, of a different character, when measured by the penalty, from that of a single act of sale.

It would be indeed strange, if the government, upon the ground they had proved six distinct acts of sale, could claim a conviction as “ a common seller,” and thereby increase the penalty from sixty to one hundred dollars, and still reserve in store other acts of sale to make each one the ground of a distinct prosecution and penalty. The fact is, if the government see fit to go for the offence of being “ a common seller,” and the respondent is adjudged guilty, it must, in a certain sense, be considered as a merger of all the distinct acts of sale, up to the filing of the complaint, and the respondent cannot be punished but for one offence. This is not like the case where the conviction, relied upon in bar, was for an individual act of sale. Though I have said we should put the case upon the ground that the exceptions showed that the offences, charged in the indictment now before us, were committed before the filing of the first complaint; yet it is not to be understood that we depart from the case made in the exceptions; and if we take the case as made up, we should be obliged to' open the case, because it was not, in that event, submitted to the jury, with the proper instructions. They should have been told that it was a conclusive bar as to all sales made prior to the filing the complaint, &c.

It has been said, in argument, that the first conviction'was a nulity for want of jurisdiction in the justice. But treating the first complaint as being under the 5th section of the act, as we think it should be treated, jurisdiction is, by the 18th section, expressly given to the justice to adjudge the respondent guilty as “ a common seller,” and inflict the fine provided in the 9th section for that offence.

We think, then, the judgment of the county court must be reversed, and the cause remanded to the county court, unless the attorney for the government shall elect to enter a nolle prosequi.

During the term a nolle prosequi was entered.