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529 Rochester v. Indiana County Gas Co. (Pa.) 717
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606 .1087 397 61
150 574 178
Saco Grange, Patrons of Husbandry, No.
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Ruffner v. Jamison Coal & Coke Co. (Pa.)..1075
Ruthenian Greek Catholic Congregation,
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521 339 427
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Read Drug & Chemical Co. of Baltimore
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328 126 246
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578 837 (Md.) 961 785
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978 Thrasher, Belmont Dairy Co. v. (Md.)..
988 Thurston v. Carter (Me.)..
164 Tilton v. Court of Common Pleas of Ocean
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621 872 325
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336 97 926 6
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773 Town of Hampton, Newcomb v. (N. H.).. 802
387 Town of Milford, Smith v. (Conn.).
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763 .1057 494
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513 220 360
880 GS2 968 290
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Wren, State v. (N. H.)..
Wolff, Sternberg v. (N. J. Ch.).
(88 Vt. 121)
STATE v. PERKINS.
(Supreme Court of Vermont. Washington. Oct. 14, 1914.)
1. INDICTMENT AND INFORMATION (8 197*)DEMURRER-WAIVER BY PLEADING OVER.
Exception to the overruling of demurrer to the information is available, notwithstanding defendant's pleading over; his right to insist on his demurrer not being thereby waived.
[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 636; Dec. Dig. § 197.*]
An information merely charging that defendant became a dealer in evergreen trees with out first procuring a license therefor, for which Acts 1910, No. 170, § 5, declares a 'fine, is insufficient, without allegations bringing him within P. S. 5012, as amended by said act of 1910. defining such a dealer as one who buys or sells in any year more than 20 evergreen trees of less than a certain size, not grown on his own land.
TAYLOR, J. The respondent was informed against under P. S. c. 217 as amended 2. LICENSES (§ 42*)—PROSECUTION-INFORMA- by No. 170, Acts of 1910, for becoming a
TION-DEALER IN EVERGREEN TREES."
dealer in evergreen trees without first procuring a license therefor. There was trial
jury at the March term, 1913, of Washington county court, and a verdict of guilty and judgment thereon, with exceptions re served by the respondent.
[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.*] 4. CRIMINAL LAW (§ 1178*)—APPEAL-REVIEW-EXCEPTIONS NOT Briefed,
Exceptions taken at the trial, not being briefed, will not be considered by the Supreme Court.
[Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 88-95; Dec. Dig. § 42.*]
3. CRIMINAL LAW (§ 1059*)-APPEAL-REVIEW-RULING ON DEMURRER.
The information is in six counts and charges distinct offenses, four in Waterbury, in Washington county, and two in Duxbury, in said county, all alleged as having been committed in November, 1912. The statute on which this prosecution is based was repealed Supreme court rule 13 (77 Atl. vii) provid- by No. 185, Acts of 1912, approved February ing that, when demurrant is the excepting party, he will not, without leave, be heard on any 21, 1913, and taking effect from its passage; cause of demurrer not shown to have been spe- but the repealing act excepted offenses comcifically pointed out on the hearing below, ap-mitted prior to February 21, 1913, and "causplies to unconstitutionality of the statute, violation of which is charged by the information,
demurrer to which was overruled.
es, proceedings or penalties based thereon." Before trial the respondent filed both a general and a special demurrer to the information. There was a hearing on the demurrers, which were overruled and an exception allowed the respondent. Thereupon a jury was impaneled and the trial proceeded.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3011-3013; Dec. Dig. § 1178.*]
5. CRIMINAL LAW (§ 1147*)-DIRECTING VERDICT-PROVINCE OF MOTION.
P. W. Perkins was convicted of violation of statute, and brings exceptions. Reversed and remanded.
Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.
 The respondent's exception to the action of the court in overruling his demurrer is available, notwithstanding his pleading over. This being a criminal case, he has not thereby waived his right to insist upon his demurrer. State v. Bosworth, 74 Vt. 315, 52 Atl. 423. The case does not show how it happened that two demurrers were filed. No specification of the grounds of demurrers relied upon was filed with the general demurrer, as required by the rules of the county court (rule 10, § 3); and the socalled special demurrer presents no ground that would not have been reached by general demurrer with specifications under the rule. County The hearing below was on the grounds assigned in the special demurrer. It is proba
The proper sphere of a motion for a directed verdict is merely the questioning of the sufficiency of the evidence to support the allegations of the evidence, so that an exception to a refusal to direct a verdict for insufficiency of the information or unconstitutionality of the statute, a matter in the court's discretion, will not lie.
Exceptions from Washington Court; Frank L. Fish, Judge.
J. Ward Carver, State's Atty., of Barre, for the State. Richard A. Hoar, of Barre, for respondent.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3038, 3072, 3073; Dec. Dig. 1147.*]
For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
ble that the so-called special demurrer was, he has a right under the Constitution to deintended as a specification of the grounds of mand. The information wholly fails to demurrer required by the rule and will be satisfy the requirements of the law, in that so treated.
none of the facts necessary to constitute the  The several counts of the information offense, except want of license, are charged, are identical, except as to time and place. and the respondent's demurrer should have In each it is alleged that the respondent on been sustained. a day named, at a place named, did become  Respondent's counsel discuss in their a dealer in evergreen trees without first pro- brief on this exception the constitutionality curing a license therefor. Six grounds of of the statute; but the question is not bedemurrer are assigned, but all come to the fore us. It was not urged as a ground of same question, viz., whether it is necessary demurrer below, and he was not granted to set forth the facts constituting this of leave to raise the question here. Supreme fense further than to charge that the re- court rule 13 (77 Atl. vii) provides that when spondent became a dealer in evergreen trees the demurrant is the excepting party he will without license. P. S. 5012, as amended, not, without leave, be heard upon any cause provided:
of demurrer not shown by the bill of excep“A person, firm or corporation that buys or tions to have been specially pointed out on sells in any year more than twenty evergreen the hearing below. In this case leave was trees of less than seven inches in diameter at the butt as cut, not grown upon his own land, not asked. The rules of this and the county shall be deemed a dealer in evergreen trees.'
court relating to hearings on demurrer are P. S. 5013 provided:
designed, among other things, to confine the “A person, firm or corporation shall, before inquiry here to a review of the question debecoming a dealer in evergreen trees procure a cided in the court below. license therefor as provided in this chapter." [4, 5] Other exceptions were taken at the
In other sections the statute provided how trial, but they need not be discussed. Some the license shall be secured and the fees of these are not briefed, and so are not for therefor. Section 5 of No. 170, Acts of 1910, consideration; others are too plainly withprovided:
out merit to require notice; and still others “A person, firm or corporation that becomes are not likely to arise on a new trial. The a dealer in evergreen trees without procuring a exception to the refusal of the court to dilicense therefor as provided in this act shall be fined not more than three hundred rect a verdict for the respondent "because dollars, and each transaction of purchase or the law is wholly unconstitutional" should sale shall constitute a distinct offense.”
be noticed. Such an exception is not availThus it is seen that one section of the stat- able to raise the question. A motion for a ute provided who should be deemed a dealer directed verdict is in the nature of a dein evergreen trees, and another section pe murrer to the evidence (Bass v. Rublee, 76 nalized the becoming such dealer without li. Vt. 395, 57 Atl. 965), and brings before the
The state conten that, the offense court the question of the sufficiency of the being statutory, it is sufficient to charge the evidence to support the allegations of the inoffense in the language of the section of the formation. An exception to the refusal of statute providing the penalty. While it is the court to direct a verdict is not the aptrue that an indictment or information for a propriate course to raise, on review, the sufstatutory offense is sufficient if it follows ficiency of the information or the validity the language thereof, when every fact neces of the law on which it is based. State v. sary to constitute the offense is charged or Rosenberg, 88 Vt. — 92 Atl. 145; State v. necessarily implied by following such lan- Louanis, 79 Vt. 463, 65 Atl. 532, 9 Ann. Cas. guage (State v. Bannister, 79 Vt. 524, 65 194; Brattleboro v. Wait, 46 Vt. 689. Atl. 586), the converse is equally true that it is not sufficient to pursue even the very cretion, where the declaration or informawords of the statute unless by so doing you tion is fatally defective, so that a motion fully, directly, and expressly allege the fact in arrest of judgment would have to be susor facts in the doing or not doing whereof tained, end the case by directing a verdict the offense consists. State v. Higgins, 53 Vt. for the defendant or respondent. Wright 191; State v. Fiske, 66 Vt. 434, 29 Atl. 633. v. Bourdon, 50 Vt. 494; Batchelder v. Kin
This information omits to allege the facts ney, 44 Vt. 150; Amidon v. Aiken, 28 Vt. necessary to bring the respondent within the 440; Dyer v. Tilton, 23 Vt. 313. But it bescope of the definition of a dealer in ever-ing in the discretion of the court in such green trees. He is left to refer to the stat-case whether to allow a verdict to be taken, ute to ascertain what constitutes such a leaving the question to be raised on a modealer; and, even if he were to refer to the tion in arrest, or to direct a verdict on that statute for the definition, there is still noth- ground to save further expense, an exception ing in the information to apprise him of to the court's refusal to sustain the motion the transaction complained of-neither with does not lie. Baxter v. Winooski Turnpike whom nor whether a purchase or sale. This Co., 22 Vt. 114, 52 Am. Dec. 84. clearly does not "apprise him of the cause Judgment and sentence reversed, and cause
The trial court may, as a matter of dis