Opinion
Opinion filed February 4, 1931.
Intoxicating Liquor — Indictment and Information — Joinder of Offenses in One Information — Election of Counts — Discretion of Court.
1. Unlawful possession of intoxicating liquor and unlawful sale thereof, being offenses of same nature and subject to same penalty, may be joined in one information.
2. Where information contained two counts, one charging unlawful possession of intoxicating liquor and the other unlawful sale thereof, whether State should be required to elect on which count it would go to jury was within discretion of trial court.
INFORMATION in two counts, one charging unlawful possession and the other unlawful sale of intoxicating liquor. Plea, not guilty. Trial by jury at the December Term, 1929, Lamoille County, Buttles, J., presiding. Verdict of guilty on both counts, judgment thereon, and sentence. The respondent excepted. The opinion states the case. No error.
W.E. Tracy for the respondent.
Benjamin N. Hulburd, State's Attorney, for the State.
Present: POWERS, C.J., SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.
Waiving all else, the respondent rests his case in this Court on his exceptions to the refusal of the court to require the State to elect on which of the two counts of the information it would go to the jury, and the refusal of the court to set aside the verdict, which was guilty on both counts, on the ground that it convicted him of two separate and distinct offenses. The first count charged the unlawful possession of intoxicating liquor; the other charged the unlawful sale of intoxicating liquor. These offenses are of the same nature, being acts prohibited by section 4 of No. 204, Acts of 1921, and are subject to the same penalty, as provided in section 21 of the same act. Therefore they could be joined in one information, and it was within the discretion of the trial court whether an election should be required of the State. State v. Darling, 77 Vt. 67, 70, 58 A. 974; State v. Semeraro, 99 Vt. 275, 277, 131 A. 798.
Judgment that there is no error in the proceedings and the respondent takes nothing by his exceptions. Let execution be done.