State v. Wheeler

62 Vt. 439

• Court: Supreme Court of Vermont
• Decided: May 15, 1890
• Status: Published

Opinion

The opinion of the court'was delivered by

Rowell, J.

It is argued for the prisoner that the statute ■under which this complaint is brought, which makes it an offense to own, keep, or possess, with intent to sell, furnish, or ■give away, intoxicating liquor in violation of law, is a nullity, for that the mere possession of the instruments of crime, with intent, but no overt act, therewith to commit it, is not an offense at ■common law, and cannot be made an offense by statute.

Although it was once thought otherwise—The King v. Sutton, Cases temp. Hardwicke, 354, and 2 Stra. [1074]—yet it is now settled that the common law will not take cognizance of an intent without an act, and that possession is no act. Rex v. Heath, Russ. & R. 184, in which The King v. Sutton is expressly overruled; Dougdale v. The Queen, 1 El. & B. 435; 1 Bish. Crim. Law, s. 204.

But there are many ancient and modern statutes, English and American, that make bare possession, when accompanied with the intent, a sufficient act in the cases for which they provide.

It was admitted in argument for the prisoner in The King v. Sutton, as reported in Oases temp. Hardwicke, that bare possession with the intent could be made a crime by positive enactment. And so it has always been considered, else these statutes-would not have been so long and so often enforced and no question made about it. We have no doubt about the validity of the statute in question.

The question raised by the demurrer we regard as settled against the sufficiency of the plea by State v. Lincoln, 50 Vt. 644, and State v. Jangraw, 61 Vt. 39. They hold the same in Massachusetts. Commonwealth v. Cutler, 9 Allen, 186; Commonwealth v. Carpenter, 100 Mass. 201.

Judgment affirmed and cause remanded for trial.