State v. Norton

45 Vt. 258

• Court: Supreme Court of Vermont
• Decided: January 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Royce, J.

The county court, upon demurrer to the complaint in this case, held it sufficient, and the case comes here upon exceptions to that decision.

It is insisted, first, that the justice had no jurisdiction, because the offense described in the complaint being punishable by a fine of fifty dollars, the justice had no power to try the respondent.

The answer to this is, that the act of 1865, Gen. Stat. 891, which created the offense, provides that the fine may be recovered by a suit before a justice of the peace, thus expressly conferring jurisdiction upon justices of the peace; and having jurisdiction to try and determine the question of the guilt or innocence of the party accused, he had the right to render judgment against the party for the penalty which the statute imposed.

The second objection is, that the act of 1865 is in conflict with the 40th section of the state constitution, which provides that “ the inhabitants of this state shall have liberty, in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed ; and in like manner to fish in all boatable and other waters (not private property), under proper regulations to be hereafter made and provided by the general assembly.” The rights secured by this section of the constitution were not intended to be absolute and unconditional, but were to be governed and controlled by such proper regulations as might thereafter be made by the general assembly. The right was reserved to the general assembly to determine what were seasonable times in which to hunt and fowl, and haying exercised this right, the court will not assume (certainly in the absence of proof) that it has been exercised in an unconstitutional manner. The numerous statutes which have been passed for the protection of game and fish, have been deemed necessary to the beneficial enjoyment of the constitutional right, and the court will not hold such laws unconstitutional, until it is clearly shown that they are so prohibitory as to virtually deprive the inhabitants of the right secured to them by the constitution.

The third objection is that the complaint is bad for duplicity, —that two distinct offenses are charged. But by a reference to the complaint, it will be seen that the only offense with which the respondent is charged is that he did “ drive, worry, and kill a live animal called a deer.”

The fourth objection is, that a memorandum of the witnesses was not subjoined to the complaint. This objection is in the nature of a dilatory plea, and should have been made at the earliest possible time; and by proceeding to trial without making it, it must be treated as having been waived. The object of this provision was to apprise .the party of the names of the witnesses who would be used to prove the facts charged in the complaint, and it is not competent for the party, after demurring to the complaint, and thus obviating the necessity for the use of any witnesses, to make this objection.

The fifth objection is, that the complaint is defective in not alleging that the act complained of was committed between Nov. 8th, 1865, and Nov. 8th, 1875. The statute upon which this complaint was made, was approved and took effect on the 8th day of Nov. 1865, and prohibited the killing of deer for the period of ten years from that date. The complaint alleges that the deer was killed by the respondent on the 7th day of December, A. D. 1870, and this we think was sufficient. 'That time was within the period in which the killing of deer was made unlawful by the statute.

The sixth objection is, that the complaint is defective in not alleging the negative in the third section of the act, and that the respondent does not come within the exception. The rule of law is, that where the exception is contained in the body of the statute which creates the offense, and enters into it as a part of its description, in stating the offense it becomes necessary to negative the exception, or to allege that the party charged does not come within the exception. If the exception is distinct from the enacting clause, or from that part of the statute which creates and describes the offense (as it is in this statute), it becomes matter of defense, and it need not be negatived that the respondent is within the exception. State v. Barker, 18 Vt. 197; State v. Butler, 17 Vt. 149.

The judgment of the county court that the complaipt is sufficient, is affirmed. On motion of the respondent, the judgment of that court is reversed, pro forma, and the cause remanded, with liberty to respondent to replead.