State v. Cliffside, Inc.

138 A.2d 310 (1958)

STATE of Vermont v. CLIFFSIDE, Inc.

No. 32.

Supreme Court of Vermont. Addison.

January 7, 1958.

Samuel J. Wagstaff, State's Atty., Vergennes, for plaintiff.

Ezra S. Dike, Bristol, for defendant.

Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SHANGRAW, Superior Judge.

HOLDEN, Justice.

The respondent Cliffside, Inc., was brought to trial in the Addison Municipal Court for the illegal sale of malt beverages *311 on Sunday. Upon the return of a verdict of guilty, the respondent filed a motion in arrest of judgment which challenged the sufficiency of the complaint in the cause. The motion was denied and judgment was entered on the verdict. The respondent's exceptions to this action by the trial court confine this appeal to the determination of the legal sufficiency of the complaint.

The complaint informs "that Cliffside, Inc. of Bristol, in the County of Addison, at Bristol, in said County of Addison, on to-wit: the 4th day of November 1956; Did then and there sell malt beverages, to-wit, twelve (12) cans of Dobler beer on Sunday when not duly licensed to do so, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State."

To withstand attack by a proper motion in arrest of judgment, a complaint must allege every fact essential to the offense charged. State v. Gosselin, 110 Vt. 361, 365, 6 A.2d 14. The Constitution guarantees that the respondent be informed, with reasonable certainty, of the crime asserted against him that he may prepare his defense, and receive protection from double jeopardy. State v. Gosselin, supra, 110 Vt. at page 365, 6 A.2d 14; State v. Villa, 92 Vt. 121, 123, 102 A. 935.

This respondent is charged with a violation of V.S. 47 § 6123 as amended. It is there provided: "A person, partnership, association or corporation shall not sell any malt or vinous beverages or spiritous liquors on any Sunday or any national, state, town, city or village election day." The section then provides for certain exceptions to the general prohibition, applicable to authorized druggists and certain designated licensees at specified hours on Sundays.

The respondent contends the complaint to be defective because there is no allegation that the malt beverages named in the complaint were illegal.

The chapter of the statutes which includes the offense charged defines malt beverages to be: "*all fermented beverages of any name or description manufactured for sale from malt, wholly or in part, or from any substitute therefor, known as beer, porter, ale and stout, containing not less than one per cent nor more than six per cent of alcohol by volume at sixty degrees Fahrenheit." V.S. 47 § 6121(I).

By the terms of the statute, the sale of malt beverages is forbidden on any Sunday. It was not necessary to allege the alcoholic content of the contraband. State v. Van Ness, 109 Vt. 392, 404, 199 A. 759, 117 A.L.R. 415.

The claim that there is no allegation that the sale of malt beverages on Sunday was illegal or that a particular license is required to permit sales on Sunday is equally without merit.

The provisions of the statute upon which this prosecution is founded does not justify the respondent's reliance on the case of State v. Villa, supra, 92 Vt. 121, 102 A. 935. There the information simply charged that the respondent sold intoxicating liquor without authority, without further particulars or description. The Villa complaint was held defective for it applied to several offenses. The complaint before us does not allege several distinct and different offenses. The complaint charges a single offense,the sale of beer on Sunday.

By the provisions of V.S. 47 § 6123, every sale of malt beverages on Sunday, regardless by whom made, constitutes an offense unless the sale falls within one of the exceptions specified in the enactment. By its terms, the statute refers not only to licensees, but to all persons. State v. Van Ness, supra, 109 Vt. 392, 402, 199 A. 759; State v. Romano, 101 Vt. 53, 56, 140 A. 492. If the sale alleged was legally protected by one of the exceptions this was a matter of defense. Negation was not required in the complaint. State v. Joseph, 110 Vt. 507, 510, 511, 9 A.2d 136; State v. Van Ness, supra, 109 Vt. at page 402, 199 A. 759.

*312 The respondent attributes a deficiency in the complaint by reason of the inclusion of the words "to-wit, twelve (12) cans of Dobler beer", without alleging the sale to a specific person. It is argued that twelve cans of beer could be sold by any number of sales to as many individuals. The appellant's brief directs us to no authority that supports its claim. The defects asserted have been previously considered by this Court in cases arising under our laws controlling traffic in alcoholic beverages.

The statute prohibits the sale of malt beverage on Sunday without regard to the amount. The quantity need not be alleged, nor necessarily proved. State v. Romano, supra, 101 Vt. at page 55, 140 A. 492. The specification of the quantity, brand and container, following the videlicet, is merely explanatory of and restrictive of the "malt beverages." See Hall v. Hall's Estate, 84 Vt. 259, 261, 78 A. 791, 33 L.R.A., N.S., 191; 3 Bouvier's Law Dictionary 3400.

The failure to name the person to whom the sale was made does not render the information defective. In State v. Munger, 15 Vt. 290, at page 295, the Court considered the sufficiency of an indictment that failed to aver to whom liquor was sold. In disposing of the respondent's motion to arrest the judgment, based on this shortage, the Court reported, "It is of no importance that the indictment should contain such an averment. * * * The statute upon which this indictment is founded, gives but one penalty for a single violation, and it is immaterial whether the sale is to one, or to divers persons." Under the statute upon which this charge was framed, the rule applies to the information before us. See State v. Hodgson, 66 Vt. 134, 150-152, 28 A. 1089.

From the considerations presented, the respondent has been legally informed of the cause and nature of the accusation. The motion to arrest the judgment was properly denied.

Exceptions overruled.

Judgment affirmed and cause remanded.