lie upon Sec. 20 of Slade's Stat. 270, against by threatening, quarrelling with, challenging, inferior crimes, viz: breach of the peace, "by assaulting, beating and striking" L, sufficiently threatening, quarrelling, challenging," &c. State shows the means by which the offense was v. S. S., 1 Tyl. 180. committed. Such complaint was held good. State v. Hanley, 47 Vt. 290. 129. Threats. · Threats, in order to violate that sense of security which is the public peace, 135. Swearing the peace. Quare-Whethand so constitute a breach of the peace under er the common law remedy of swearing the the statute, must be of some grievous bodily peace against one who threatens an offense, exharm, and be put forth in a desperate and reck-ists in this State. Redfield, J., in State v. Benless manner, accompanied by acts showing a edict, 11 Vt. 239. (See G. S. c. 31, s. 12.) formed intention to execute them,-must be intended to put the person threatened in fear of VII. bodily harm and must produce that effect, and be of a character calculated to produce that effect upon a person of ordinary firmness. State v. Benedict, 11 Vt. 236. OFFENSES AGAINST CHASTITY, MORALITY 136. Adultery-Proof of the act. To warrant a conviction upon an indictment for 130. Annoyance. A grand juror's com- adultery, it is not sufficient to prove that the plaint charged that the respondents did break parties were found in bed together under cirand disturb the public peace, by ringing and cumstances warranting the presumption of an causing to be rung and tolled a certain church illicit intent between them, since this constibell and, well knowing that one P was then liv-tutes a distinct offense under another section of ing, did report and aver that said P was dead the same statute; and a presumption of guilt and was to be buried on the next succeeding should not be drawn from the opportunity to day, and did ring the said bell with intent to commit a crime, when the corpus delicti is not have it believed that said P was then dead, and proved. State v. Way, 6 Vt. 311. with intent to annoy, harass and vex said P 137. and his family and friends. Held, that this did not charge a breach of the peace under the statute (G. S. c. 116, s. 1); and judgment was arrested. State v. Riggs, 22 Vt. 321. not a felony. Adultery was not a felony at common law, nor a crime punishable in the common law courts; nor is it made a felony by the statute which declares it a crime to be punished by imprisonment in the state 131. Complaint for breach of the peace. prison. State v. Cooper, 16 Vt. 551. The complaint, under G. S. c. 116, s. 1, charged 138. Under the statute making it burglary that M, at, &c., on, &c., "in and upon one W in the night time to break and enter any dwelldid make an assault, and him the said W did ing house, &c., with intent to commit the crime then and there with fists, clubs, sticks, and iron of "murder, rape, robbery, larceny, or any instruments, strike, beat, bruise and wound, to the great injury of the said W, and thereby and by his tumultuous and offensive carriage, and by threatening and challenging the said W, the said M did disturb and break the public peace, contrary," &c. Held, that the complaint charg- 139. Particeps as a witness. On trial ed but one offense, viz: a breach of the peace, for adultery, the particeps was not allowed to and was not objectionable for duplicity. State testify to the fact. State v. Annice, N. Chip. 9. v. Matthews, 42 Vt. 542. 140. Proof of marriage. On such trial it other felony" (G. S. c. 113, s. 7), the respondent was indicted for so breaking and entering with intent to commit adultery. After verdict, judgment was arrested;—for that adultery was not a felony. Ib. The law is the same in "blanket act.” (G. S. 132. The statute enumerates several modes is necessary to prove a marriage in fact. Repuof disturbing and breaking the public peace, tation and cohabitation alone are not sufficient ; but the offense is one. Ib. otherwise, by Chipman, C. J. in an action for 133. The words "tumultuous and offensive crim. con. Ib. carriage, threatening, quarrelling and challeng- 141. Blanket act. ing," alone, would be insufficient, as not con- a prosecution under the stituting such a statement of facts as import c. 117, s. 3.) State v. Rood, 12 Vt. 396. with sufficient certainty a breach of the peace; 142. An indictment under the "blanket but the facts which constitute such offensive act" must charge the illicit intent to be between and tumultuous carriage, &c., should be alleged. them,-that both parties had the illicit intent. But the assaulting, beating and striking, in this State v. Chillis, Brayt. 131. case, import a breach of the peace, and these other 143. Bigamy-Indictment. An indictwords may be treated as descriptive of the cir- ment for polygamy under the statute (G. S. cumstances accompanying the assault, and are c. 117, s. 5), alleging both marriages to have harmless, and might be stricken out. Ib. been had in other States, and charging that the 134. A complaint alleging that the respond-respondent feloniously cohabited with the secent "did disturb and break the the public peace ond wife in this State, was held bad, on motion by tumultuous and offensive carriage, *lin arrest, for not alleging that such second maṛ State v. Brown, 27 Vt. 619. riage was unlawful in the State where it was character that spreading it upon the record had. State v. Palmer, 18 Vt. 570. would be an offense against decency, and, so 144. An indictment for bigamy was held alleging it, it may be described in general ill on demurrer, because the time and place of terms. State v. the first marriage were left blank. La Bore, 26 Vt. 765 (Changed by G. S. c. 117, s. 8.) 153. Disturbing remains of the dead. The statute offense of disturbing "the remains of any dead person" was set forth in an indict145. Evidence of marriage. Upon a trial ment as disturbing "the dead body of Benjafor bigamy;-Held, that evidence that the person min P. Calfe, then lately before laid in a coffin State v. by whom a marriage ceremony was performed and interred," &c. Held sufficient. in another State was, in the one case, reputed to Little, 1 Vt. 331. be and that he acted as a justice of the peace, G. S. CH. 119. and, in the other case, as a minister of the gos- VIH. OFFENSES AGAINST PUBLIC POLICY. pel, was prima facie proof of such person's official or ministerial character. State v. Abbey, 29 Vt. 60. rest. 154. Play actors. Under a statute provid146. Incest. An indictment in one count ing that "if any company of players or persons for incest, charging the offense as committed whatever shall exhibit any tragedies, comedies, on a day named, "and on divers other days &c., each person so exhibiting shall forfeit and and times between that day and" a certain pay," &c. (G. S. c. 119, s. 16.)-Held, that later day named, was held ill on motion in ar- an information was ill which charged that the State v. Temple, 38 Vt. 37. defendant exhibited tragedies, &c., without al147. In a trial for incest, under an indict-leging that he was one of a "company of playState v. Fox, 15 Vt. 22. ment in one count, the court admitted evidence ers or persons," &c. of distinct offenses on different occasions at 155. Military enlistment. Under G. S. remote periods of time, after the respondent's c. 119, s. 29, prohibiting the enlisting of "any counsel had insisted that the State should be person in this State for military service without confined in the proof to a single occasion. Held this State," &c., an indictment was held good erroneous. Ib. on demurrer, which charged that the defend 148. Indecent exposure of person. Where ant at Fairfax, in the county. of Franklin, ena man indecently and purposely exposed his listed one E O, &c.,-omitting the averment private parts to a woman, and solicited her to that E O was in this State at the time of the enhave sexual intercourse with him, although no listment-since the enlistment could not have third person was present;-Held, that he was been at Fairfax, as alleged, unless E O was at State v. Cook, 38 Vt. indictable, under G. S. c. 117, s. 11, for "open that time in this State. and gross lewdness and lascivious behavior." 437. State v. Millard, 18 Vt. 574. 156. Killing deer. A complaint for viola149. Procuring miscarriage. It is not tion of the statute against killing deer (Act essential to constitute the offense of attempting 1865, No. 184), which prohibited such killing to procure "the miscarriage of a woman preg- for ten years, alleged the offense to have been nant with a child," under G. S. c. 117, s. 10, committed on a certain day named-which date State v. was in fact within said period of ten years. that the foetus should then be alive. Held sufficient, without a distinct averment Howard, 32 Vt. 380. State v. Norton, 45 Vt. 258. IX. CRIMINAL PROCEDURE. 150. House of ill-fame. The offense of that the offense was committed within such keeping a house of ill-fame is local, and must period. be described as committed in a particular town; and the prosecutor is confined in his proof to the town, and cannot, as in other cases, prove an offense within the county; but a more particular description of the house is not required. State v. Nixon, 18 Vt. 70. 1. Proceedings before justice. 157. Complaint by town grand juror. 151. This offense does not depend upon the From 1797 to 1801, town grand jurors were not motive of the person keeping the house. Al- general informing officers, and could not prefer Brackett v. State, 2 though alleged in the indictment that it was a complaint for theft. 158. kept for filthy lucre and gain, such purpose Tyl. 152. 11 Vt. 344. (Since changed.) by private prosecutor. A warneed not be proved, nor what was the actuating rant, upon the complaint of a private informer, motive of the offender. Ib. 152. Obscene publication. An indict- cannot legally issue without oath of the comment for selling an obscene publication should plainant; and this must appear by the magisState v. J H, 1 Tyl. 444. ordinarily set it forth in haec verba, as in indict-trate's certificate. 159. Any person may make complaint to a ments for libel or forgery; but this may be excused, where the publication is of so gross ajustice of the peace for a crime or misdemeanor, for the purpose of having an examination and complaint, has always been held to be directory, commitment, taking the oath required by the and the omission to be no cause for quashing constitution and giving the security required by the proceedings. Bennett, J., in Downer v. the statute. After binding over or commitment Baxter, 30 Vt. 474. for trial, the prosecution then becomes public 167. The objection to an omission of such and must be conducted by the officer appointed memorandum must be taken at the earliest opfor that purpose, unless it be for some offense portunity, or it is waived. It is not reached by where the complainant has an interest in the a demurrer. State v. Norton, 45 Vt. 258. prosecution and conviction of the offender. 168. It is not ground for abatement of a State Treasurer v. Rice, 11 Vt. 339. 28 Vt. grand juror's complaint, that the names of the 315. (See G. S. c. 124, s. 8, and seq.) witnesses to support it are not subjoined to it. State v. Hanley, 47 Vt. 290. 169. Minute of presentment. 160. In case of a prosecution for a high crime or misdemeanor commenced by a private Under the prosecutor, where he had no pecuniary interest statute which provides that every complaint, in the conviction, a recognizance taken as well &c., in a criminal prosecution "shall be void,' to the prosecutor as the treasurer of the State unless the magistrate shall make a minute of for the appearance of the respondent, was held the true day, &c., when presented ;--Held, that void. It should have been to the treasurer a recognizance taken by a justice for appearalone. Ib. ance to the county court, where no such min161. --by State's attorney. State's attor-ute was made, was void. State v. Cook, 6 Vt. neys have authority, by information, to bring 282. persons accused of offenses before justices, and 170. But a judgment rendered upon such to cause them to be bound up;-that they are complaint, or process, is valid, until set aside only to aid town grand jurors in such prosecu- or reversed. Allen v. Huntington, 2 Aik. 249. tions, is unreasonable and absurd. Treasurer 25 Vt. 350. 32 Vt. 628. v. Brooks, 23 Vt. 698. 171. Venue Waiver. Where a party 162. Where some officer other than the was prosecuted before a justice for an ofState's attorney is authorized to commence fense committed in a town other than the place suits in behalf of the State, the defendant can- of trial, or where the respondent resided, and not claim, as a matter of right, that the suit this appeared in the complaint, and he raised should be dismissed because not prosecuted by no objection thereto until after the close of the the State's attorney. State v. Bradish, 34 Vt. opening argument for the prosecution;—Held, 419. that the objection was waived, and that the jus163. Complaint must show authority of tice acted properly in proceeding with the trial prosecutor. It is indispensable that a com- to judgment. (G. S. c. 31, s. 2.) State v. Meaplaint in a criminal prosecution should show, on its face, that it is presented by one having the proper authority. State v. Soragan, 40 Vt. 450. der, 47 Vt. 78. 172. Misjoinder. A complaint before a justice for several offenses of the same character, was held sufficient on demurrer in the county court, where, as to one count, the justice had no jurisdiction to try, but only to inquire and bind over, or discharge, and as to the others he had jurisdiction to try, and did try and convict, making no order as to the first count. This is not a misjoinder. He might bind over or discharge on the first count, and convict on the others. State v. Peck, 32 Vt. 164. Thus, a complaint for a violation of an ordinance of the city of Burlington was presented by "Leverett B. Englesby, city attorney, within and for the county of Chittenden." Held, that the words "city attorney," applying as well to another city as to the city of Burlington, were too indefinite to show the necessary authority, and there being no such county officer, the complaint was held ill on demurrer. Ib. 172. 165. - and of magistrate. A complaint 173. Warrant. The warrant attached to a for violation of an ordinance of the city of Bur- criminal complaint is process issued merely to lington was directed "To David Read, Esq., bring the respondent into court; and, when in recorder of the city of Burlington, within and court, the proceedings against him on the comfor the county of Chittenden." Upon demurrer, plaint may be had, whatever the warrant or it was objected that there was no such officer as recorder of the county. Held, that these last words of misdescription could be rejected, and, leaving the previous true description to stand, the complaint was sufficient. Ib. service which brought him may have been. A plea in abatement for defective service of the warrant should be either rejected, or overruled. State v. Clark, 44 Vt. 636. 174. Record. The justice's record in a 166. Memorandum of names of witnesses. criminal case must show the place where his G. S. c. 15, s. 87, requiring a memorandum of court was held, that it may be seen to have the names of the witnesses in support of the been within his commission. Brackett v. State, prosecution to be subjoined to a grand juror's 2 Tyl. 152. 183 175. An appealing party in a criminal case| The commencement of an indictment, went to trial on a complaint as recited in the as follows" The grand jurors for the people of justice's record, a copy of the original com- the State of Vermont, upon their oath present,' plaint not being sent up;-Held sufficient, on &c. was considered proper, and was held sufmotion in arrest, the record sufficiently show- ficient on motion in arrest. State v. Nixon, 18 ing what the complaint was, and it being suffi- Vt. 70. cient as recited. State v. Kelly, 47 Vt. 294. 176. Appeal. Held, that in a criminal prosecution before a justice, the respondent is not deprived of his appeal by pleading guilty before the justice. State v. Little, 42 Vt. 430. 184. On motion in arrest, defects in the caption of an indictment, or even the omission of the caption, cannot be noticed. Ib. State v. Thibeau, 30 Vt. 100. State v. Gilbert, 13 Vt. 647. (G. S. c. 31, s. 63.) 185. Conclusion. The conclusion of an 177. The duty of a justice to receive pay- indictment, contrary to the statute," &c., is ment of a fine and cost, where the respondent good. State v. Newton, 42 Vt. 537. appeals, is suspended when the time prescribed 186. Indorsement. "True Bill," instead by the statute, within which the respondent had of "A True Bill," is a sufficient indorsement a right to pay, has expired, that is, 12 days of an indictment. State v. Davidson, 12 Vt. before the session of the court to which the 300. case is appealed-and can be revived only in 187. The foreman of a grand jury signed his the event that neither party enters the appeal name to the indorsement, "a true bill," upon during that term. State v. Wooley, 44 Vt. 363. an indictment found, but without appending to 178. The act of procuring the affirmance of his name the word “foreman." A motion to the judgment of a justice in a criminal case ap-quash for this cause was overruled. Held corpealed, is in the nature of a motion to the rect. State v. Brown, 31 Vt. 602. (G. S. c. county court, and need not be done personally 37, s. 14.) by the officer to whose duties it most properly 188. Minute of presentment. The clerk's pertains. Where such judgment was affirmed minute upon an indictment was as follows: on application of the prosecuting town grand Orleans County Court, Dec. T., 1838, received juror ;-Held, that it was competent for the and filed this 29th, 1838." Held a sufficient county court to decide whether the State was minute of the true day, month and year," properly represented, and that there was no er- where, by reference to the records of the term, ror herein. Ib. it appeared that it could only signify the 29th day of the month of December. State v. Bartlett, 11 Vt. 650. 2. Indictment and information. 66 189. An objection to an indictment that a minute of the true day, &c., when the same was exhibited was not entered upon it, as required by statute (G. S. c. 62, ss. 8, 10), must 179. Constitution. Article V. of the amendments to the U. S. Constitution, providing that no person shall be held to answer for a capital or otherwise infamous crime, unless on a pre- be made before pleading the general issue, or sentment or indictment of a grand jury, ex- it will be treated as waived. State v. Butler, cept," &c., has reference only to proceedings 17 Vt. 145. in the tribunals of the United States. State v. 190. Form and substance-English lanKeyes, 8 Vt. 57. guage. The statute requiring judicial pro 180. Grand jury. It is no cause for quash-ceedings to be in the English language does not ing an indictment against a town, that one of preclude, in either civil or criminal pleadings, the grand jury who returned the bill was a rated the use of the Arabic numeral figures in uniinhabitant of the town. The objection is one versal use to express numbers,--as dates, sums, which it is not competent for the town to make, amounts, &c. State v. Hodgeden, 3 Vt. 481. since the interest of the juror was to shield the Hyde v. Moffat, 16 Vt. 271. Clark v. Stoughtown from indictment. State v. Newfane, 12 ton, 18 Vt. 50. State v. Paddock, 24 Vt. 315. Vt. 422. 191. The words Anno Domini, or, by con181. Caption. In an information or com- traction, A. D., have become English by adopplaint by a State's attorney, or town grand ju- tion, and are sufficient in an indictment, as ror, it is not necessary to aver that it is made upon his oath of office. State v. Sickle, Brayt. 132. State v. Comstock, 27 Vt. 553. 182. An indictment commenced thus:"The grand jurors within and the body of the county," &c. Held, on motion in arrest, that the omission of the word for, after the word "and," did not vitiate the indictment. State v. Brady, 14 Vt. 353. equivalent to the year of our Lord-or, they might be omitted altogether as the prefix to a date, as being superfluous. State v. Hodgeden. State v. Gilbert, 13 Vt. 647. 22 Vt. 436. State v. Clark, 44 Vt. 636. 192. Vi et armis. The omission of vi et armis is not fatal where the averments show that the criminal act was commited with force and violence, State v. Hanley, 47 Vt. 290; or when these words may be fairly implied from 202. An indictment alleged the offense to the other words used-as, from the word fel- have been committed at a day in the future. loniously in larceny. Brackett v. State, 2 Tyl. After verdict, the judgment was, for this cause, 152. arrested on motion. State v. Litch. 193. Statutable offense. It is not, in general, necessary in an indictment for a statutable offense to follow the exact wording of the statute. It is sufficient if the offense be set forth with substantial accuracy and certainty to a reasonable intendment. State v. Little, 1 Vt. 331. 6 Vt. 598. 203. It is a fundamental rule of criminal pleading, that the material facts must be averred with certainty as to time and place. The year, month and day must be particularly stated, though not necessary so to be proved; and a defect herein is not cured by verdict. Steele, J., in State v. O'Keefe, 41 Vt. 694. 194. If a statute enumerates offenses dis- 204. Judgment arrested after verdict, where, junctively, the indictment should charge them in an indictment for larceny, the offense was conjunctively, in cases where there is no repug- charged as committed on "the second day of nancy in the offenses, or in the penalty. State March Anno Domini one thousand eight." State v. Woodward, 25 Vt. 616. v. G. S., 1 Tyl. 295. 195. General rules. Distinction between felonies and misdemeanors, as to indictment and proceedings in trials. State v. Wheeler, 3 Vt. 344-347. 196. Where the act complained of becomes a crime only from its peculiar relations or circumstances, and without them would not be unlawful, those relations or circumstances must be set forth in the indictment. State v. Day, 3 Vt. 138. 207. So, a complaint for liquor selling, charging the sale as made on a certain day of 197. In an indictment, every fact and cir- the month, but omitting the year, and alleging cumstance which is a necessary ingredient to a former conviction in 1863, but omitting the constitute the offense should be stated, and an month and day, was held ill, on demurrer, in omission to set forth such facts is fatal. If all both respects. State v. Kennedy, 36 Vt. 563. the facts stated may be true, and still the per- 208. Words of statute. Where a statute son indicted not guilty of the offense charged, punishes a common law offense by its legal or the indictment is insufficient, and no sentence common law designation, without enumerating can be pronounced thereon. State v. North- the acts which constitute it, it is necessary in field, 13 Vt. 565. an indictment to use the terms which techni198. An indictment set forth a term of the cally charge the offense named at common law. county court as held and a certain cause as tried But this is not necessary in an indictment upon before the chief judge,-naming him. Held a statute, where the statute is of itself complete, ill on demurrer ;-that it was not necessary to and embraces and enumerates all the elements name any of the judges, but, being named, the constituting the crime the legislature had in averment could not be rejected as surplusage; view; and where the statute so describes the and if either was named, enough should have offense, or creates it, it is sufficient that the inbeen named to constitute a quorum, or it should dictment lay the offense in the words of the have been averred that the others were disqualified. State v. Freeman, 15 Vt. 722. (1843.) statute. State v. Daley, 41 Vt. 564. State v. Cook, 38 Vt. 437. State v. Jones, 33 Vt. 443. State v. Clark, 44 Vt. 636. 209. Negativing exception. Where a 199. Time and place. Where a single and distinct offense is charged to have been committed on a day certain--as liquor selling the statute created an offense, as by the words indictment is not rendered ill by the addition, |“give away”,—and a subsequent statute quali"and at divers other times," &c. This last fied the words, -as by enacting that these words may be rejected as surplusage. State v. Mun- should not be construed to apply to giving ger, 15 Vt. 290. away under certain circumstances;-Held, that 200. An indictment for liquor selling charg- the qualification need not be negatived in an ed that the respondent on, &c., at, &c., "sell indictment. By Redfield, C. J.-This rule never and dispose of," &c. Held, after verdict, that extends beyond a qualification in the same secthe auxiliary, did, to the word "sell" would be tion. State v. Freeman, 27 Vt. 523. supplied by intendment. State v. Whitney, 15 Vt. 210. An indictment against one as an ac298. 31 Vt. 321. See State v. Leach, 27 Vt. 317. cessory after the fact, under a statute enacting 201. In an indictment, every traversable that "every person not standing in the relation fact must be directly alleged, with time and of husband and wife," &c., "to an offender, place. State v. La Bore, 26 Vt. 765. State v. who shall harbor and conceal," &c., "such ofLitch, 33 Vt. 67, fender," &c., "shall be deemed an accessory |