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529 Rochester v. Indiana County Gas Co. (Pa.) 717
Rollins v. Blackden (Me.)
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Pierce, State v. (Vt.).
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606 .1087 397 61
150 574 178
Saco Grange, Patrons of Husbandry, No.
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Roseville Trust Co. v. Curtiss (N. J. Ch.).. 580
Rothwell, State v. (Del. Gen. Sess.).
Ruffner v. Jamison Coal & Coke Co. (Pa.)..1075
Ruthenian Greek Catholic Congregation,
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521 339 427
St. Laurent v. Manchester St. Ry. (N. H.) 959
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Sanders v. Boston & M. R. R. (N. H.).
Security Trust & Safe Deposit Co. v. Mar-
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Senft v. Western Maryland R. Co. (Pa.)..... 553
Read Drug & Chemical Co. of Baltimore
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14 284 862
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578 837 (Md.) 961 785
32 Thomas, Taylor v. (N. H.). 619 Thompson v. Graham (Pa.).
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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Tomuschat v. North British & Mercantile
621 872 325
.1087 554 312
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336 97 926 6
853 Town of Boonton v. Logan (N. J. Sup.)..
813 Town of Grand Isle v. McGowan (Vt.)...
773 Town of Hampton, Newcomb v. (N. H.).. 802
387 Town of Milford, Smith v. (Conn.).
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867 Truitt v. Lecates (Del. Super.)
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119 West Penn. Rys. Co., Green v. (Pa.)... 341
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763 .1057 494
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Washington Trust Co. v. Norwich & West
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erly Traction Co. (Conn.).
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513 220 360
880 GS2 968 290
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Woonsocket St. R. Co., Moore v. (R. I.).. 980 Workingman's Club of Plymouth, Macavicza v. (Pa.)...
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 intended as a specification of the grounds of demurrer required by the rule and will be so treated.
 The several counts of the information are identical, except as to time and place. In each it is alleged that the respondent on a day named, at a place named, did become a dealer in evergreen trees without first procuring a license therefor. Six grounds of demurrer are assigned, but all come to the same question, viz., whether it is necessary to set forth the facts constituting this offense further than to charge that the respondent became a dealer in evergreen trees without license. P. S. 5012, as amended, provided:
"A person, firm or corporation that buys or sells in any year more than twenty evergreen trees of less than seven inches in diameter at the butt as cut, not grown upon his own land;
shall be deemed a dealer in evergreen trees."
P. S. 5013 provided:
"A person, firm or corporation shall, before becoming a dealer in evergreen trees procure a license therefor as provided in this chapter."
In other sections the statute provided how the license shall be secured and the fees therefor. Section 5 of No. 170, Acts of 1910, provided:
"A person, firm or corporation that becomes a dealer in evergreen trees without procuring a license therefor as provided in this act shall be fined not more than three hundred dollars, and each transaction of purchase or sale shall constitute a distinct offense."
he has a right under the Constitution to demand. The information wholly fails to satisfy the requirements of the law, in that none of the facts necessary to constitute the offense, except want of license, are charged, and the respondent's demurrer should have been sustained.
Thus it is seen that one section of the statute provided who should be deemed a dealer in evergreen trees, and another section penalized the becoming such dealer without license. The state contends that, the offense being statutory, it is sufficient to charge the offense in the language of the section of the statute providing the penalty. While it is true that an indictment or information for a statutory offense is sufficient if it follows the language thereof, when every fact necessary to constitute the offense is charged or necessarily implied by following such language (State v. Bannister, 79 Vt. 524, 65 Atl. 586), the converse is equally true that it is not sufficient to pursue even the very words of the statute unless by so doing you fully, directly, and expressly allege the fact or facts in the doing or not doing whereof the offense consists. State v. Higgins, 53 Vt. 191; State v. Fiske, 66 Vt. 434, 29 Atl. 633. This information omits to allege the facts necessary to bring the respondent within the scope of the definition of a dealer in evergreen trees. He is left to refer to the statute to ascertain what constitutes such a dealer; and, even if he were to refer to the statute for the definition, there is still nothing in the information to apprise him of the transaction complained of-neither with whom nor whether a purchase or sale. This clearly does not "apprise him of the cause
 Respondent's counsel discuss in their brief on this exception the constitutionality of the statute; but the question is not before us. It was not urged as a ground of demurrer below, and he was not granted leave to raise the question here. Supreme court rule 13 (77 Atl. vii) provides that when the demurrant is the excepting party he will not, without leave, be heard upon any cause of demurrer not shown by the bill of exceptions to have been specially pointed out on the hearing below. In this case leave was not asked. The rules of this and the county court relating to hearings on demurrer are
designed, among other things, to confine the inquiry here to a review of the question de
cided in the court below.
[4, 5] Other exceptions were taken at the trial, but they need not be discussed. Some of these are not briefed, and so are not for consideration; others are too plainly without merit to require notice; and still others are not likely to arise on a new trial. The exception to the refusal of the court to direct a verdict for the respondent "because the law is wholly unconstitutional" should be noticed. Such an exception is not available to raise the question. A motion for a directed verdict is in the nature of a demurrer to the evidence (Bass v. Rublee, 76 Vt. 395, 57 Atl. 965), and brings before the court the question of the sufficiency of the evidence to support the allegations of the information. An exception to the refusal of the court to direct a verdict is not the appropriate course to raise, on review, the sufficiency of the information or the validity of the law on which it is based. State v. Rosenberg, 88 Vt. -, 92 Atl. 145; State v. Louanis, 79 Vt. 463, 65 Atl. 532, 9 Ann. Cas. 194; Brattleboro v. Wait, 46 Vt. 689.
The trial court may, as a matter of discretion, where the declaration or information is fatally defective, so that a motion in arrest of judgment would have to be sustained, end the case by directing a verdict for the defendant or respondent. Wright v. Bourdon, 50 Vt. 494; Batchelder v. Kinney, 44 Vt. 150; Amidon v. Aiken, 28 Vt. 440; Dyer v. Tilton, 23 Vt. 313. But it being in the discretion of the court in such case whether to allow a verdict to be taken, leaving the question to be raised on a motion in arrest, or to direct a verdict on that ground to save further expense, an exception to the court's refusal to sustain the motion does not lie. Baxter v. Winooski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84.
Judgment and sentence reversed, and cause