may, but at his peril, pay a claim even without quiet enjoyment;-Held, that the true rule of suit, and yet recover of his warrantor by proof damages was the difference between the two that it was a claim that could not be resisted. conditions of continuing under the lease to the Castleton v. Miner, 8 Vt. 209. end of the year, and of being ejected as he was; 76. Under a deed with warranty, if the cov- and that this required the deduction from his enantee finds some one in possession of the land, gross loss of all the unpaid rent, although the he may bring his action for possession, and, if defendant could not have recovered it by ache fail to recover, this is prima facie a breach tion. Merritt v. Closson, 36 Vt. 172. of the covenant, without notice to his warrantor 82. Covenant to repair, &c. A lessee to defend the title; and, with such notice, the covenanting to carry on the leased premises in judgment is conclusive against the warrantor a good husbandlike manner, and maintain the and his representatives. Redfield, C. J., in buildings, &c., is bound at all times to perform Turner v. Goodrich, 26 Vt. 708. Park v. Bates, these covenants; and, for a breach, the lessor 12 Vt. 381. Brown v. Taylor, 13 Vt. 631. 30 may maintain an action before the termination Vt. 87. Pitkin v. Leavitt, 13 Vt. 379. of the lease, and recover his actual damages. Buck v. Pike, 27 Vt. 529. 77. A warrantor or covenantor, not vouched in to defend, has no control over, and is not bound by, the proceedings in the suit. Knapp v. Marlboro, 31 Vt. 674. 83. Assignments. The covenant arising out of the words "yielding and paying" is an implied, as distinguished from an express, covenant, and the lessee is not made liable thereby for rents accrued after an assignment of his 78. Defense to action for price of land sold. In an action to recover the price of land sold, where the plaintiff, claiming the land by term. Kimpton v. Walker, 9 Vt. 191. a title which was spread upon the town record, 84. In an action of covenant by the assignee conveyed it with the usual covenants of war- of the reversion against the lessee, upon his exranty, and the defendant had not been disturb-press covenant to pay the rent to the lessor, or ed by any adverse claim ;-Held, that defect of his assigns;-Held, that it was no defense that title, arising from the form of a previous con- the lessee had assigned the term to another, veyance to the plaintiff, was not a defense, but and that the plaintiff had accepted him as tenthat the defendant's remedy was upon the cov-ant and had received from him one year's rent. Dix v. School District, 22 Vt. 309. Shaw v. Partridge, 17 Vt. 626. enants. III. COVENANTS IN LEASES. v. Watkins, 15 Vt. 488. S. C., 17 Vt. 379. 86. The landlord may declare against an assignee of his lessee for a share of the rent reserved in the lease, proportioned to the relative value of that part which the defendant holds by the assignment. Pingry v. Watkins. 85. In an action of covenant for rent by the lessor against the assignee of the term, it is not necessary in the declaration to allege, nor on 79. Expulsion of tenant. To an action of trial to prove, an entry and possession by the covenant upon a lease for rent, the defendant assignee. If the title and possessory right passpleaded an expulsion from the premises by a ed, the assignee became possessed in law of the third person under adverse claim of title. A term, and an actual possession is not material. replication, with a special traverse, that the University of Vt. v. Joslyn, 21 Vt. 52. Pingry defendant was not expelled "from the entire premises," was held sufficient, for the rent is apportionable, and the plea purporting to be an answer to the entire cause of action, was not so in fact. University of Vt. v. Joslyn, 21 Vt. 52. 80. To an action of covenant upon a lease for rent, a plea is insufficient which avers that, 87. Quare-Whether, upon an allegation before the execution of the lease, a third person, that all the estate, interest, &c., of the lessee in named, entered upon the premises and expelled the premises came to the defendant by assignthe plaintiff and continued in possession to the ment, proof that part only of the premises leasday of the demise, and on that day occupied and ed was assigned makes a variance.-"I should held the same, claiming the same by adverse incline to the contrary opinion." Royce, J. Ib. title, and that such disseisor has so continued in 88. But without an assignment of the lesadverse possession until the time of pleading, see's whole estate and interest in the premises excluding as well the plaintiff as the defendant assigned, there can be no legal assignment; the from the demised premises, where the plea does conveyance of a less interest is at most an unnot connect the defendant with the disseisor's derlease, or a conveyance in the nature of one. title, and does not aver that his title was para-Ib. mount to the plaintiff's. Bennett, J. Ib.; and see Underwood v. Birchard, 47 Vt. 305. 89. In an action of covenant for rent against the assignee of the lessee, the declaration aver81. The plaintiff, tenant of leased premises, red that all the estate, &c., of the lessee came had paid part of the rent for the year, when the to and vested in the defendant by assignment, defendant, his landlord, ejected him, taking the and that the defendant entered into possession crops, &c. In an action on the covenant for under the assignment and retained the posses sion until the rent became due. Under a plea fourteen years of age are capable of crime, but denying the assignment and the defendant's subjects that assumption to the effect of proof possession--and issue joined ;-Held, that the as to the real fact. The intermediate period is fact of the assignment was the only material called by Blackstone "the dubious stage of dispart of the issue, and that proof of that entitled cretion." In reference to capacity during this the plaintiff to a verdict. Pingry v. Watkins, 17 period the law makes no presumption, but Vt. 379. leaves it to be determined by the jury upon the 90. A lessor by perpetual lease, reserving evidence. Barrett, J., in State v. Learnard, 41, rent, has an assignable interest in the estate Vt. 589. which he can transfer with such covenants as run with the land, or to his assigns. Shaw v. Partridge, 17 Vt. 626. 91. In a lease, a covenant to convey to the lessee upon certain conditions during the term, runs with the land, and passes to the assignee at law, although not named, Hagar v. Buck, 44 Vt. 285. I. II. CRIMES. IN GENERAL. 2. Under an indictment charging the respondent, as principal, in a burglary and larceny the evidence was that the acts were done by his children, a boy above and a girl below the age of fourteen years, by his command and coercion, he remaining at home, a mile distant from the place of the burglary. Held, that the court could not charge, as matter of law, that the duress of the girl should be referred to the presence and influence of the boy, and not to the duress of the respondent; that the question of duress of the girl, and of her capacity for crime, were questions of fact for the jury upon the whole evidence, and not for the court upon OFFENSES AGAINST LIFE AND PERSON, any selected part of the evidence, nor upon the 1. Homicide and murderous assaults. 3. Felony. Felony, as existing at common III. OFFENSES AGAINST PROPERTY,-G. S. law, is not known to the laws of this State, as CH. 113. 1. Arson. 2. Burglary. 3. Larceny. 4. False pretenses, 5. Wounding, &c., of cattle, &c. IV. FORGERY AND COUNTERFEITING,-G. crimes do not work a forfeiture of the estate. (See post 137-8, 195.) But offenses are distinguishable into what may be termed crimes and misdemeanors; the former punishable capitally, or by confinement in the State prison, and the latter by fine, or imprisonment in the county jail; and, as there is no difference in the mode of trial which can operate against the right of the accused, no reason exists in this State, why V. OFFENSES AGAINST PUBLIC JUSTICE. One indicted for what would be a felony at com G. S. CH. 115. 1. Perjury. 2. Suppressing evidence. 3. Impeding an officer. mon law, may not be convicted of a misde- VI. OFFENSES AGAINST THE PUBLIC PEACE with intent to commit murder, there may be an G. S. CH. 116. VII. OFFENSES AGAINST CHASTITY, MORALI TY AND DECENCY, G. S. CH. 117. acquittal of the specific offense charged, and a conviction for a common assault. State v. Coy, 2 Aik. 181. 5. So, under an indictment for manslaughter, in one count, there may be a conviction for an VIII. OFFENSES AGAINST PUBLIC POLICY. assault and battery. State v. Scott, 24 Vt. G. S. CH. 119. IX. CRIMINAL PROCEDUure. 1. Proceedings before justice. I. IN GENERAL. 127. 6. Party forcibly brought within jurisdiction. In a prosecution for a crime committed in this State, the respondent cannot object that he was forcibly and against his will taken in Canada and brought into this State, and without the consent of the authorities of Canada. State v. Brewster, 7 Vt. 118. 1. Age of capacity. Capacity for crime. Change of venue. The supreme court in persons above the age of seven years, is, in has no power to order a change of venue in a the last analysis, always a question of fact. As criminal case; nor has the county court authorithe result of observation and experience, the ty to try such case in any other county than law assumes, prima facie, that persons above that in which the offense was committed. State 7. v. Howard, 31 Vt. 414. (Changed by Stat. and her death is caused thereby, he is guilty of 1865, No. 1.) II. manslaughter, although she consented to the connection and the operation. State v. Center, OFFENSES AGAINST LIFE AND PERSON. 35 Vt. 378. 1. Homicide and murderous assaults. 15. On a trial for manslaughter, the circumstances of the killing were shown by the prosecution, and exculpatory evidence was given by the defense. The court charged the jury that 8. Distinction between murder and "if they were convinced beyond a reasonable manslaughter. If one inflict a mortal wound doubt that the death of the deceased was ocwith a deadly weapon upon a vital part, it is a casioned by the shot fired by the respondent, presumption of fact that he designed the natural then the prosecution had made out the killing consequences of his act, and it is murder, unless in the manner charged * * that all killhe shows that the result was not designed, or ing is presumed to be unlawful; and where the that it was done in heat of blood upon legal fact of killing is established, it devolves on the provocation, or was justifiable. State v. Me-party who committed the act to excuse that Donnell, 32 Vt. 491. killing-to show that it was justified-in order and that the jury should have been instructed, in substance, that upon all the evidence they must find, beyond a reasonable doubt, that the crime charged in the indictment was committed by the respondent, in order to warrant his be 9. In case of a homicide not justifiable, if to escape the legal consequences which attach the design to kill be formed deliberately, for to the commission of the act." Held erroneous ever so short a time before the giving of the mortal wound, or if formed without such provocation as the law regards as sufficient justification for anger and heat of blood, the offense is murder. Ib. 10. If in a mutual combat, without previous ing found guilty. State v. Patterson, 45 Vt. malice, and after mutual blows given, one party 308. draws his knife and, in the heat and fury of the fight, deals the other a mortal wound, this is but manslaughter, although the blow was given with the purpose to kill. Ib. 16. Carrying weapon. The prisoner hav ing the right to use reasonable force to expel the deceased from his premises;-Held, that he had the right to go prepared with a loaded 11. The doctrine that malice is presumed, pistol, to defend himself against any assault the prima facie, from the mere fact of killing, deceased might make upon him while in the questioned. Ib. 538; and see State v. Patter-exercise of that right; and that if he only inson, 45 Vt. 314. tended to use the pistol in such an emergency State v. 12. Favorable construction. In trials for in defending his own life, or against the inflicmurder, it is the duty of the court, upon com- tion of great bodily harm, the carrying it for mon principles of humanity and justice, first, such a purpose would be lawful; nor could the to pronounce the prisoner innocent until he is carrying of the pistol for such lawful purpose, proved guilty; and, secondly, after he is shown be treated as in itself carelessness. to have committed a homicide, to look for Carlton, 48 Vt. 636. every excuse which may reduce the guilt to the 17. Murderous assaults. There is a well lowest point consistent with the facts proved. | recognized distinction between an assault with Redfield, C. J., in State v. McDonnell, 32 Vt. intent to murder, and an assault with intent to 538. kill. In the former case, the proof must be 13. A charge was held erroneous, and a new such as shows that, if death had been caused by trial granted after conviction for murder, be- the assault, the assailant would have been guilty cause, there being testimony tending to prove of murder; and, in the latter case, the proof a case of manslaughter only, and this being the need only be such as that, had death ensued, respondent's theory, the court omitted to call the crime would have been manslaughter. State the jury's attention to it in that light, and only v. Reed, 40 Vt. 603. called their attention to the distinction between 18. The offense named in G. S. c. 112, s. murder and manslaughter by the announce- 23, viz.: an assault, being armed with a dangerment of abstract propositions and definitions, ous weapon, with intent to kill, &c., is a differwithout any application of them to the evidence ent offense from that named in s. 18, which is which tended to prove the case to be one of for an assault "with intent to kill," simply. manslaughter. Ib. 491. Ib. 14. Manslaughter. Held, that if a man, 19. Under a statute punishing an assault in order to effect sexual connection with a fe- "with intent to kill or murder," (G. S. c. 112, male, not his wife, uses artificial means-as an s. 23);-Held, that the statute embraces two ofinstrument to perforate the hymen and is fenses in the alternative; that each offense guilty of such carelessness or negligence as to might be charged by separate counts in the endanger the life or personal safety of the girl, same indictment, or, as in this case, both may be charged in the conjunctive in the same 27. The particulars of such complaint cancount-" with intent to kill and murder' not be given in evidence. The rule is, that it since the intent to murder includes the intent is competent to prove that the prosecutrix made to kill and, if proved, merges the latter, and, if complaint, and that an individual, without not proved, but the intent to kill is proved, naming him, was charged. Ib. there may be a conviction of the lower offense; as, on an indictment for murder, there may be a conviction for manslaughter. Ib. 28. If one lay hold of a woman and use force upon her with the intention and for the purpose of having sexual intercourse with her 20. Under an indictment for an assault with by force and against her will, he may be conintent to kill, the intent, like the assault, must victed of an assault with intent to commit a be proved beyond reasonable, not possible, rape, although, after resisting for awhile, she doubt. State v. Daley, 41 Vt. 564. finally yielded, and sexual connection was then 21. Torture. An indictment lies for tor- had with her, with her consent. State v. Hartturing one accused of crime, to extort a con-igan, 32 Vt. 607. fession from him,-this being contrary to the 29. Under an information for an assault common law and the constitution of Vermont. with intent to commit a rape, a conviction may State v. Hobbs, 2 Tyl. 380. be had, though the proof be that a rape was 22. Evidence of intent. In a prosecution actually committed; and such conviction would for assault and battery the respondent offered be a bar to a prosecution for the rape, on the to prove that the person assaulted was a quar- ground that the less offense is a necessary elerelsome and fractious man, but without offer- ment in, and constitutes an essential part of, ing to prove that the respondent had knowledge the greater, and both are in fact one transacof such fact. Held, that the offer was properly tion. State v. Smith, 43 Vt. 324. (See Stat. rejected. State v. Meader, 47 Vt. 78. 1870, No. 5, s. 9.) 23. Where one is charged with an assault, CH. 113. 1. Arson. the intent with which the party assaulted came III. OFFENSES AGAINST PROPERTY-G. S. to be connected with the assault, especially if he be a witness, may be important for the defense; and such intent may be shown by the acts of the assaulted party, and his declarations connected with his acts-as, previous affrays, threats, &c. State v. Goodrich, 19 Vt. 116. 2. Rape and Assault with intent. 30. In an indictment for burning a public building, it is not necessary to allege that it was of, or belonged to, any one. State v. Roe, 12 Vt. 93. 31. Under C. S. c. 104, s. 4, which provides, 24. In a trial for rape, the court charged "If any person shall willfully and maliciously that if the respondent commenced and entered set fire, with intent to burn, to any dwelling upon the sexual intercourse with the girl's con- house, &c." ;-Held, that the offense defined is sent, but she then withdrew her consent, and an attempt at arson by the application of fire the respondent forcibly continued the inter- directly to, or in immediate contact with, the course after he had knowledge of her dissent, building, and that it is not necessary, to a conit would be rape. Held, as applied to the facts viction under this statute, that there should be of the case, no error;- the girl being only 12 an actual burning of some portion of the buildyears old and of small stature, the daughter of ing. State v. Dennin, 32 Vt. 158. the respondent's wife, and of his family, &c. State v. Niles, 47 Vt. 82. 2. Burglary. 25. Upon a trial for rape, where the woman alleged to have been forced is examined as a 32. Inn. Held, that a guest at an inn may witness for the prosecution, she may be asked commit burglary by leaving his own room and on cross-examination, whether at a specified breaking into the room of another guest, or time and place she had not illicit intercourse into other parts of the house where he has no with a person named. State v. Johnson, 28 Vt. right to be. State v. Clark, 42 Vt. 629. 512. Bennett, J., dissenting. Affirmed, State v. Reed, 39 Vt. 417. 33. Noctanter. The respondent was discovered within an inn in the commission of a 26. In a prosecution for rape, evidence that burglary at half-past three in the morning of the prosecutrix afterwards complained of the act August 3d, and the testimony of the witness is only admissible as confirmatory of the evi- was, that it was then dark-day-light was apdence given by her. Mere lapse of time before proaching, but that he could not see to dissuch complaint is not the test of the admissi- tinguish a man's face in the hall where he was bility of such evidence ;-this only affects its without a light, and that none of his guests were weight with the jury. State v. Niles, 47 Vt. up." The court charged the jury that, if they believed this testimony, the offense was com 82. mitted "in the night time." neous. Ib. Held, not erro-the horse was described as "of a bay or brown color." Held, that this was not cause for arrest34. Indictment for burglary committed "be- ing judgment. State v. Gilbert, 13 Vt. 647. tween the hours of twelve at night and nine of 44. In an indictment for larceny, the propthe evening succeeding";-Held ill on demurrer, erty was described as "one feather bed.” Held, because uncertain whether the act charged was sufficient. State v. Parker, 47 Vt. 19. committed by night, or by day. State v. Mather, N. Chip. 32. 35. Indictment-Intent. 45. Since the Revised Statutes, which made horse-stealing larceny simply, there is no objecAn indictment tion to joining, in the same count of an indictfor burglary alleged the breaking and entering ment, the stealing of a horse, saddle and bridle, of the dwelling house of A, with the intent to &c. State v. Nutting, 16 Vt. 261. steal the goods of A in said dwelling house then 46. An indictment charged in one count the being, and having so entered, stole the goods of stealing, at one time, of one horse, one buggy B found in said house. and one harness, the property of W. Held not Brady, 14 Vt. 353. objectionable for duplicity. Horse stealing is Held, good. State v. 36. In an indictment for burglary, the in- by statute larceny, and nothing more; differtent may be set forth as an intent to steal the ing from ordinary larceny only in the extent of goods and chattels in said dwelling house then fine to be imposed. The indictment charges and there being," without stating the owner- but one offense. State v. Cameron, 40 Vt. 555. ship of the goods. State v. Clark, 42 Vt. 629. 3. Larceny. 47. So, an indictment charging in one count the stealing of different articles belonging to different persons, but at the same time and place, is not bad for duplicity. It charges but one larceny. State v. Newton, 42 Vt. 537. 48. Intent is for the jury. On trial for 37. What is. Under an indictment for stealing sheep, the court say:-If the respondent took the sheep and changed their local position, stealing, whatever the circumstances of the takhowever little, and did this with the felonious intent charged, it was enough to constitute the offense. State v. Carr, 13 Vt. 571. 38. A bailee of goods who has a qualified possession—as a servant-is guilty of larceny, if he privately eloigns and converts them. State v. White, 2 Tyl. 352. 39. If the finder of goods lost neglects to advertise them, but conceals or privily converts them, he is justly chargeable with larceny. State v. Jenkins, 2 Tyl. 377. ing, it must be left to the jury to determine whether the taking was with felonious intent. State v. Smith. 2 Tyl. 272. 49. Evidence. Where goods are stolen, and the whole or part of them are found concealed on a person, this is prima facie evidence that he stole them; and unless he can show that he came by them honestly, must conclude him guilty. State v. Jenkins, 2 Tyl. 377. 50. The prisoner was indicted for larceny. The stolen goods were found concealed some 40. Where one hired a horse under the pre- 100 rods from his house, he showing where tense that he wanted the horse to drive to A they were. Held, that it was properly left to and would return soon, but intended wholly to the jury to find, under the circumstances statdeprive the owner of the property and to con- ed, whether the goods were found in the prisvert it to his own use, and he drove the horse oner's possession, as if found upon his person beyond A, when he was arrested ;-Held, that or in his house; and that, if so, no explanation this was larceny, although he had not sold or being given, they would be warranted in finddisposed of the horse; and it seems, that the ing him guilty. State v. Brewster, 7 Vt. 118. getting possession of the horse under such false 51. On a trial for larceny, the evidence for pretense and with such intent, would be lar- the prosecution tended to prove that the resceny. State v. Humphrey, 32 Vt. 569. pondent, Sept. 9, 1866, hired a horse and wag41. Original taking in another jurisdic-on at Rutland for a short ride, but absconded tion. One who feloniously steals property in and never returned them; that the owner next another State of the Union, or in Canada, and day began a search, and continued it until Oct. brings it into this State, is guilty of larceny in 17, 1866, when the team was found at Mechanthis State, and may be here tried and convicted. icsville, N. Y., the witness not stating in whose State v. Bartlett, 11 Vt. 650. State v. Mockridge, possession, or under what circumstances, it was Ib. 654. found. Held, that this made out a prima facie 42. Indictment. An indictment for steal-case for the prosecution. State v. Cameron, 40 ing two five dollar bank bills or notes of the Vt. 555. value," &c., was held ill on demurrer, because 52. On a trial for stealing a horse and wagon, not averring that the bills contained a promise the respondent put in testimony that his brother to pay money, &c. State v. Emery, Brayt. 131. purchased the property of a stranger. Held, (Altered by Stat. 1870, No. 5.) that the prosecutor might show, as tending to 43. In an information for stealing a horse, contradict this, that this brother was then on 64 |