Opinion
Opinion filed January 4, 1938.
Intoxicating Liquor — Respondent Entitled to Have State Elect Offense Relied Upon — Election Held Sufficient.
1. In prosecution for illegal furnishing of intoxicating liquor, where evidence tended to show four offenses of furnishing to one individual, who was named in only one of counts in complaint, respondent was entitled to have State elect which offense it relied upon.
2. In such prosecution, where evidence tended to show commission of offense on four occasions, one about first of November, statement of State's attorney that State relied upon furnishing about first of November was sufficient election as to offense to which count in complaint was to apply, and denial of respondent's further request that State elect as to which time was relied upon was without error.
COMPLAINT for illegal furnishing of intoxicating liquor. Plea, not guilty. Trial by jury in Franklin municipal court, P.L. Shangraw, Municipal Judge, presiding. Verdict of guilty on one count and judgment and sentence thereon. The respondent excepted. The opinion states the case. Exceptions overruled.
P.C. Warner for the respondent.
William K. Sullivan, State's attorney, for the State.
Present: POWERS, C.J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.
The respondent has been convicted of furnishing intoxicating liquor to one William McCarty, and comes here upon exceptions. The respondent ran a restaurant in Richford, and the evidence tended to show that in November, 1936, he served gin to McCarty in the kitchen in back of the restaurant upon one occasion, and in the dining room of the restaurant about three times. In reply to a question if the respondent served him intoxicating liquor about the first of November, McCarty answered: "Yeah, I think the first of November." It did not appear in what part of November the other acts of furnishing took place.
At the close of the evidence the respondent asked the State to elect as to which date in November the count in the complaint was to apply. Thereupon, in reply to a question by the court, the State's attorney answered: "We rely upon the furnishing about the first of November." To this respondent's counsel replied: "Well, then we object and ask that the State elect as to the furnishing to McCarty which one of the three times we rely upon," and the court said: "Respondent's motion denied and exception allowed."
There can be no question but that the respondent was entitled to have the State elect as to which offense it relied upon. State v. Coomer, 105 Vt. 175, 178, 163 A. 585, 94 A.L.R. 1038. Instead of denying the last request it would have been better for the court to have stated that the State had already made an election, as we think that a sufficient election was made by the reply of the State's attorney to the court's question. No error appears.
It should be noted that the date was the only matter discussed. Had the State been asked to elect as to the place where the offense was committed, whether in the kitchen or in the dining room, another question might be presented.
Exceptions overruled. Let execution be done.