Public Service R. Co. v. Board of Public Schagrin v. Schagrin (Del.). 862 .1087 Public Service R. Co., Jones v. (N. J.). 397 Quail, State v. (Del. Gen. Sess.) 61 942 81 Schmid v. Spicer (Del. Super.). Schmidt, Schneider v. (N. J. Ch.). Schmitt, Capital Circle, No. 11, Brotherhood of the Union v. (N. J. Ch.). Schneider v. Atkinson (N. J. Sup.). Schneider v. Schmidt (N. J. Ch.). 859 Schnepfe v. Schnepfe (Md.).. 501 Schoppe, State v. (Me.).... 56 Schwartz, Levine v. (N. J. Sup.). 991 789 596 81 789 891 867 274 Second Nat. Bank v. Graham (Pa.). Security Trust & Safe Deposit Co., In re (Del. Ch.).. 198 244 Rand, Farr v. (Vt.). 964 Randall, Johnson v., two cases (R. I.). 829 Security Trust & Safe Deposit Co. v. Martin (Del. Ch.). 245 829 Raystown Water Power Co. v. Brumbaugh Seeley v. Central Vermont R. Co. (Vt.)... 28 345 (Pa.) 140 R. B. Dunning & Co., Keeling-Easter Co. v. Senft v. Western Maryland R. Co. (Pa.)... 553 987 (Me.) 929 Read Drug & Chemical Co. of Baltimore Seybert v. Hay Walker Brick Co. (Pa.)... 704 701 Rees, Van Wart v. (Me.)... 328 Shannon v. Boston & M. R. R. (N. H.).. 167 204 Rees' Estate, In re (Pa.).. 126 Shaw v. Oliver (Me.). 652 Reeves, In re (Del. Ch.).. Spicer, Schmid v. (Del. Super.)... Stacy v. Dolan (Vt.)... Stafford, Young v. (N. J. Sup.). Stahl v. Press Pub. Co. (Pa.). Stamford Motor Co., Banta v. (Conn.). Stark v. Winslow (N. H.). 379 182 713 820 .1022 H.) 956 Thaw, Barton v. (Pa.). State v. Alpert (Vt.). State v. Berry (Me.). 32 Thomas, Taylor v. (N. H.). 619 Thompson v. Graham (Pa.). 740 118 State v. Schoppe (Me.). 867 Truitt v. Lecates (Del. Super.) 850 Western Maryland R. Co., Senft v. (Pa.) 553 West Jersey Securities Co., Fleisher v. (N. J. Ch.). Young, Haskins v. (Conn.). Young v. Stafford (N. J. Sup.). 877 286 575 Zabriskie v. Erie R. Co. (N. J.).. 385 West Jersey & S. R. Co. v. Board of Water Zalewski v. Waterbury Mfg. Co. (Conn.).. 682 Com'rs of Atlantic City (N. J.).................... 369 | Zoltowski, Commonwealth v. (Pa.)................ 496 THE ATLANTIC REPORTER VOLUME 92 (88 Vt. 121) STATE v. PERKINS. (Supreme Court of Vermont. Washington. Oct. 14, 1914.) 1. INDICTMENT AND INFORMATION (§ 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.*] 2. LICENSES (§ 42*)-PROSECUTION-INFORMATION-DEALER IN EVERGREEN TREES." An information merely charging that defendant became a dealer in evergreen trees without 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. [Ed. Note.-For other cases, see Licenses, Cent. Dig. 88 88-95; Dec. Dig. § 42.*] 3. CRIMINAL LAW (§ 1059*)-APPEAL-REVIEW-RULING ON DEMURRER. 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. J. Ward Carver, State's Atty., of Barre, for the State. Richard A. Hoar, of Barre, for respondent. TAYLOR, J. The respondent was informed against under P. S. c. 217 as amended by No. 170, Acts of 1910, for becoming a dealer in evergreen trees without first procuring a license therefor. There was trial by 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. 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 by No. 185, Acts of 1912, approved February 21, 1913, and taking effect from its passage; but the repealing act excepted offenses com Supreme court rule 13 (77 Atl. vii) providing that, when demurrant is the excepting party, he will not, without leave, be heard on any cause of demurrer not shown to have been specifically 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 demur [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.*] 4. CRIMINAL LAW (§ 1178*)—APPEAL-RE- | rers, which were overruled and an exception VIEW-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 Criminal Law, Cent. Dig. §§ 3011-3013; Dec. Dig. § 1178.*] 5. CRIMINAL LAW (§ 1147*)-DIRECTING VERDICT-PROVINCE OF MOTION. allowed the respondent. Thereupon a jury was impaneled and the trial proceeded. [1] 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. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3038, 3072, 3073; Dec. Dig. 1147.*] Exceptions from Washington Court; Frank L. Fish, Judge. 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 demurrer required by the rule and will be so treated. [2] 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." mand. 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. [3] 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 decided 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. Thus it is seen that one section of the statute provided who should be deemed a dealer in evergreen trees, and another section pe nalized 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 The trial court may, as a matter of disit 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. KinThis 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 |