State v. Lincoln

50 Vt. 644

• Court: Supreme Court of Vermont
• Decided: January 15, 1878
• Status: Published

Opinion

The opinion of the court was delivered by

Royce, J.

The complaint in this case is made under the statute, passed in 1876, entitled, An act to abate and suppress nuisances, and is according to the form prescribed by said statute. A nuisance is defined by that statute to be, “ every saloon, restaurant, grocery, cellar, shop, billiard-room, drinking-place, or room used as a place of public resort, where spirituous or malt liquors, or any kind of intoxicating drink, is unlawfully sold, furnished, or given away, or kept for selling, furnishing, or giving away unlawfully.” The respondent has pleaded in bar to the prosecution of this complaint, that on the 3d day of January, 1877, she was prosecuted under c. 94, Gen. Sts., for the crime of owning, keeping, and possessing intoxicating liquors with intent to sell, furnish, and give away, and that she was convicted of the crime of having sold one half pint of whiskey to John Root, and avers that the crime that she is now complained of and the sale of the whiskey to Root, are one and the same transaction. The crime with which the respondent is charged in this complaint is different in kind and degree from the crime with which she was charged in the former prosecution. Evidence that would have justified a conviction under that complaint, might not justify a conviction under this. But such evidence might be admissible under this complaint as tending to show the guilt of the respondent. A plea of a former conviction or acquittal, must be for the same act and crime; and it must appear that the offense charged in both cas^ was the same in law and fact. The reason given for allowing such a plea is, that no one shall be twice put in jeopardy for the same offense. It was held in State v. Smith, 43 Vt. 324, that where one offense is a necessary element in, and constitutes an essential part of, another offense, and both are in fact but one transaction, an acquittal or a conviction of one is a bar to the prosecution of the other. But the facts alleged in the plea do not bring this case within that rule.

The crime of selling intoxicating liquor, for which the previous conviction was had, was not a necessary element in the crime with which she is now charged, and was not an essential part of it. The two crimes were created by distinct and independent statutes; and the proof necessary to justify a conviction for either, depends upon the definition given of the crime. By resorting to the definition given of the crime with which the respondent is charged, it will be seen that it would not be necessary to a conviction that the act of selling alleged in the plea should be shown. Hence, we hold that the former conviction of the respondent, as pleaded, is not a bar to the further prosecution of this complaint; and the judgment of the County Court sutsaining the demurrer and adjudging the plea insufficient, is affirmed.

The respondent takes nothing by her exceptions, and is sentenced to pay a fine of $20 into the State treasury, and the costs of prosecution, and stand committed until the sentence is complied with; and the place described in the complaint is adjudged to be a common nuisance, and is ordered to be shut up and abated.