State v. Avery , 44 Vt. 629 ( 1872 )

The opinion of the court was delivered by

Redfield, J.

The respondent is indicted under the 31st sec. of ch. 113 of the General Statutes, for “ removing and carrying away one saw-mill saw, which was then and there a part of the machinery of a certain water saw-mill,” &c., to which the respondent demurred, and his counsel claim that the saw must be held and adjudged not to be “ a part of the machinery.”

It is averred to be a part of the machinery; and this is admitted by the demurrer, and upon this issue of law, the indictment averring an offense within the statute, and the respondent admitting it on the record, the judgment of guilty must be awarded.

But the counsel of the respondent has appealed to the supposed knowledge that the court may have of the construction of a sawmill for proof that the averment that the “ saw was a part of the machinery” is not true. And the court have brought to the service of the respondent such knowledge, scientific and practical, as they possess in mechanics j and we think that the saw in a saw-mill is a part, and quite an essential part, of the machinery. The power is applied at the wheel, and the saw at the objective point does the work. Without the wheel, no power could be applied; without the saw, the power could do no work. The one is as indispensable as the other. The mower and reaper, without the knives, and the saw-mill without the saw, would be the play of Hamlet with Hamlet left out.

On motion of the respondent the judgment of the county court is pro forma reversed and cause remanded.