State v. Peters , 57 Vt. 86 ( 1884 )

The opixxion of the court was delivered by

Taft, J.

This case was heard upon demurrer to an ixxdictment charging the respondent with having violated the oath takexx by him as lister for the town of Bradford ixx the year 1881. It is alleged ixx the ixxdictxnexxt that the respondent, Dudley K. Axxdross, axxd Preston S. Chamberlin were duly elected listers at the axxxxual March meeting ixx that year. It is xxot alleged that either Axxdross or Chamberlin ever qualified or acted as such. It is claimed that the waxxt of such allegation renders the indictment defective. Sec. 2058, R. L., provides that towns shall choose annually three, four, or five listers, and the number so chosen have joint authority to proceed in the discharge of their duties by preparing the annual lists. The concurrence of a majority of the board is sufficient — R. L. s. 3 — and is required in all cases. The listers act as a board; and in order to give them jurisdiction of the matters before them, it is essential that the requisite number should be chosen and qualified. If a town chooses but one lister, it is evident that he alone lias no authority to act in, or jurisdiction of, the matters which should properly come before the board. And until the legal number of listers is duly chosen and qualified, one member cannot commit the crime of perjury by violating the oath required to be taken. His acts would he null and void in every respect. We are not called upon to decide what the effect of electing only a major part of the board would be, as there is no allegation that any one, save the respondent, ever qualified or acted as lister. It is an essential requisite in every indictment, that all matters material to constitute the particular crime charged, should he positively and distinctly alleged. In State v. Fox, 15 Vt. 22, the respondent was indicted under a statute imposing a penalty upon each person of a company of players who should exhibit tragedies, &c. There was no allegation that Fox was one of a company; and the court said that no single individual unconnected with others could commit the offense, and adjudged the indictment insufficient. The election, qualification, and action of a board of listers — an essential ingredient constituting the offense — not being alleged, the indictment is defective. The judgment of the County Court is reversed, the demurrer sustained, the indictment adjudged insufficient, and the respondent discharged.