State v. Rowe , 43 Vt. 265 ( 1870 )

The opinion of the court was delivered by

Wilson, J.

The exceptions in this case present two questions for the consideration of the court: one relates to the ruling of the county court under which testimony was admitted to show sales of intoxicating liquor to other persons than those named in the specification filed in the city court, and the. other relates to the trial and sentence of the respondent after the demurrer was overruled. In prosecutions for the offenses charged, it has been repeatedly decided by this court, that the form of a complaint, information or indictment given in the statute is sufficient, where the. only descriptive averments of the offense are, that the accused “ did, at divers times, sell, furnish and give away intoxicating liquor,” and that only a single count is necessary in order- to charge, and admit proof of, any number of offenses, whether of selling, furnishing or giving away such liquor. The legislature have, by statutory provisions, relieved the administration of the liquor law from the common law rule, which does not allow more than one offense to be charged in a single count. The statute not only gives the form in which such offenses shall be charged, viz., that the accused “ did, at divers times, sell, furnish and give away intoxicating liquor,” but it also declares that it shall not be necessary to set forth more particularly the kind or quality of intoxicating liquor, nor the nature, date or place of the offense. From a charge so general, it is evident that many cases may arise where the-accused would labor under serious embarrassment in preparing his defense and defending against the prosecution, if compelled to go to trial without any information, except what could be inferred from the complaint alone, as to the number of offenses for which conviction would be claimed. In prosecutions under these provisions of the statute, we think the accused is entitled to a specification of the offenses for which the government claims a conviction. In the case of Commonwealth v. Giles, 1 Gray, 466, the coui’t decided that whether such a specification shall be made is a question within the discretion of the court where the cause in which it is asked for is pending, to he judged of and determined upon the peculiar facts and circumstances attending it. It has been ruled in this state, that in this class of cases the accused is entitled to a specification of the offenses charged in this general form of complaint. State v. Conlin, 27 Vt., 319 ; State v. Freeman, 27 Vt., 525 ; State v. Bacon, 41 Vt., 526. It would seem that this ruling was made with the view of satisfying the provision of the 10th article of the bill of rights of our state constitution, which gives the accused, in all prosecutions for criminal offenses, a right “ to demand the cause and, nature of his accusation.” In State v. Bacon, supra, the court say, “ But this (the specification) is always, in prosecutions of this character, a matter of discretion with the court, to be exercised with reference to the circumstances of the case.” In this case it is not claimed that the county court refused to order a specification, or that the one filed was not sufficiently certain as to the offenses therein mentioned. But the respondent’s objection is, that the court admitted proof of offenses not mentioned in the specification which' had been filed in the .case. The case states that before the introduction of any testimony in the city court, the prosecuting attorney, pursuant to an order of that court, made on motion of the respondent, filed a specification of the offenses for which he claimed a conviction. This specification, the case states, was part of the record of the proceedings of the city court, which was entered in the county court, and no other specification was filed. It would seem that this specification was satisfactory both to the government and the respondent for the purposes of the trial in the city court. If it was not sufficient for the purposes of the trial in. the county court, we think that court, in their discretion, could have allowed an amendment of it, or ordered a new specification, on motion of either party. But no such motion or request was made, and the court made no order upon the subject. This being so, the respondent had a right to rely upon the specification in the record, as notice of the offenses in proof of which testimony would be offered, and to claim that the prosecutor should be confined, in his proof, to the offenses so specified. Unless the evidence is thus confined, the respondent could derive but little benefit from a specification, while it mighty serve to mislead him. We think the testimony offered to prove other offenses than those mentioned in the specification should have been excluded, that the court below erred in admitting it, and on this ground the judgment of the county court must be reversed.

The other questions,- as to the proceedings of the county court after judgment overruling the demurrer, are immaterial- under the act of 1870 (No. 58).

The judgment of the county court is reversed, and the cause remanded-