Hodgson v. Vermont
At the June term, 1892, of the county court for the county of Addison, in the state of Vermont, the plaintiff in error was tried and convicted 'of one first offense and one second offense,' upon an information for selling liquor, filed by the state's attorney. The information was as follows:

'Be it remembered, that Frank L. Fish, state's attorney within and for said county, comes here in open court in his own proper person, and upon his oath of office gives said court to understand and be informed that Edward Hodgson, of Orwell, in the county of Addison, and state of Vermont, on the 7th day of June, A. D. 1892, at Orwell, in the county of Addison aforesaid, did at divers times sell, furnish, and give away intoxicating liquor, without authority, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

'And the said state's attorney, on his oath aforesaid, comes and gives said court further to understand and be informed that the said Edward Hodgson, prior to this time, to wit, at the December term of the county court held at Middlebury, in and for the county of Addison, on the first Tuesday of December, A. D. 1891, before and by consideration of said court, was, as appears of record, convicted of selling, furnishing, and giving away intoxicating liquors, against the law in such case made and provided.'

It is stated in the record that the state's attorney 'likewise filed specifications in words and figures following':

'In said case the state's attorney, for a specification, specifies and says as follows: That he will rely upon, and expect to prove in the trial of said cause, the fact that the respondent, within three years before the filing of the information in the said cause, sold, furnished, and gave away intoxicating liquor to the following named persons, or to some one of them; that is to say:

[Here follow the names of 66 persons, whose residence is not given.]

'And the undersigned state's attorney states that he has also specified the offenses against said respondent with all the certainty as to the time and person, and he is now able from all the information he has in said cause; and the state's attorney reserves the right to amend these specifications if he shall have further evidence pursuant to the statute.

'And the state's attorney further specifies and relies upon the selling, furnishing, and giving away of intoxicating liquor by the respondent within three years before the filing of said information, to some person or persons now unknown to the state's attorney, and claims the right to add the names of such persons, when ascertained, to the specifications, and to make such other amendments in these specifications as the law and discretion of the court may admit.'

This specification is not required by any statute, and forms no part of the information. It is, however, provided by statute that: 'When a specification is required, it shall be sufficient to specify the offenses with such certainty as to time and person as the prosecutor may be able, and the same shall be subject to amendment at any stage of the trial; and where the specification sets forth the sale, furnishing or giving away to any person or persons unknown, the witnesses produced may be enquired of as to such transactions with any person, whether named in the specification or not, and as the name of such person may be disclosed by the evidence it may be inserted in or added to the specification upon such terms as to a postponement of the trial for this cause, as the court shall think reasonable.' St. Vt. 1886, No. 37.

It does not appear from the record that the specification was asked for by the respondent, nor whether the offenses of which he was convicted were for selling, furnishing, or giving away, or whether to either of the 66 persons named in the specification, or to some person or persons not named. These proceedings were based upon sections 3802, 3803, 3859, 3860 of the Revised Laws of Vermont (Revision of 1880) as amended by No. 42 of the Acts of 1888, which are as follows:

'Sec. 3802. If a person by himself, clerk, servant or agent, sells, furnishes or gives away, or owns, keeps or possesses with intent to sell, furnish or give away intoxicating liquor or cider, in violation of law, he shall forfeit for each offense to the state, upon the first conviction not less than five nor more than one hundred dollars, and may also be imprisoned in the discretion of the court not more than thirty days; upon the second and each subsequent conviction, not less than ten nor more than two hundred dollars for each offense, and shall also be imprisoned not less than one month nor more than one year.

'Sec. 3803. Justices shall have concurrent jurisdiction with the county court in prosecutions under the preceding section, and the same may be tried upon the complaint of a grand juror of the town, or of the state's attorney, before a justice or upon the information of the state's attorney, before the county court.'

'Sec. 3859. Complaints for any offense against section 3572 (section 3802) shall be substantially in the following form:

"State of Vermont, _ County-ss.:

"To A. B., justice of the peace for the county of _, comes C. D., grand juror of the town of _, in said county, and complains that E. F., of _, on the ___ day of _, A. D. , at _, did, at divers times, sell, furnish or give away (as the case may be) intoxicating liquor, without authority, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

"C. D., Grand Juror.'

'Sec. 3860. Under the foregoing complaint every distinct act of selling, furnishing or giving away may be proved, and the court shall impose a fine for each offense.'

Before trial the plaintiff in error filed a motion to quash the indictment. This motion was overruled by the court, to which decision the plaintiff in error duly excepted. The case was carried by the plaintiff in error to the supreme court of Vermont upon exceptions to the overruling by the county court of his motion to quash, and upon other exceptions taken at the trial, and not material here, as they raise no federal question. Judgment and sentence were stayed in the county court, to await the result of the hearing in the supreme court.

In that court the plaintiff in error filed a motion in arrest of judgment, which he was allowed by the court to do, and the same was taken into consideration and passed upon by the court.

The grounds set forth are, in substance: That the information upon which the conviction was had is insufficient and void, and lacking in substance in various particulars specified in the motion; that the respondent was deprived of his right to be informed of the nature and cause of the accusation against him; that he was convicted of two infamous crimes without due process of law, and denied by the state the equal protection of the law; that the statutes of Vermont under which the proceedings were had are in conflict with the provisions of the constitution of the United States, and especially that provision of the fourteenth amendment which provides that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person the equal protection of the law.'

The supreme court of Vermont affirmed the judgment of the county court (28 Atl. 1089) refusing to quash the information, and overruled the motion in arrest, and proceeded to render judgment upon the verdict, and sentenced the plaintiff in error to pay a fine of $30 for the first offense and $70 for the second offense, with costs taxed at $197.36, and to be confined at hard labor in the house of correction at Rutland for the period of 60 days, 'with alternative sentence.' The alternative sentence is that, in case of failure to pay the fine and costs within twenty-four hours, the respondent be confined in the house of correction for the term of three days for each dollar, in addition to the period for which he is sentenced. R. L. § 4336.

The court decided, in substance, that the information was sufficient; that it constituted due process of law; that the statute did not infringe the requirements of the constitution of the United States by depriving the accused of the equal protection of the laws, or by subjecting him to cruel and unusual punishment.

The defendant thereupon sued out a writ of error to this court, which was allowed by the chief judge of the supreme court of the state of Vermont.

E. J. Phelps and Wm. H. Bliss, for plaintiff in error.

Frank L. Fish and C. A. Prouty for the State of Vermont.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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