VI: “Procure or solicit or offer to procure or solicit a female person for the purpose of prostitution, lewdness or assignation.” State v. Ploof, 116 Vt. 93, 96, 70 A.2d 575, 577 (1950). The State alleged that Ploof “solicite[d] a female person, ... for the purpose of committing lewd lascivious acts upon the (body of the) [female person].”
The error is available for review on appeal, even after judgment and sentence. State v. Pelletier, supra; State v. Ploof, 116 Vt. 93, 95, 70 A.2d 575; State v. Bosworth, 74 Vt. 315, 318, 52 A. 423. Judgment reversed and cause remanded.
However, since the state's attorney was basing his right to proceed upon 23 V.S.A. § 1008 (under which the legislature has recognized that the state has, at least, a co-existing interest with the municipality in the control of motor vehicles and matters relating thereto) this must be regarded as a criminal prosecution. As such the waiver which would result in a civil case did not arise here. Compare State v. Ploof, 116 Vt. 93, 95, 70 A.2d 575. It follows from the foregoing that the respondent's exception to the court's action in denying his motion to dismiss is available notwithstanding that he went to trial after his motion to dismiss had been denied.
Johnson v. Rickard, 115 Vt. 514, 515, 66 A.2d 23; Stevens v. Wright, 108 Vt. 359, 360-361, 187 A 518; Cutting v. Cutting, 101 Vt. 381, 384, 143 A 676. The right to review by this Court is granted or withheld at the election of the legislature. State v. Ploof, 116 Vt. 93, 96, 70 A.2d 575; Roddy v. Fitzgerald's Estate, 113 Vt. 472, 475, 35 A.2d 668; In re Walker Trust Estate, 112 Vt. 148, 151, 22 A.2d 183; Miles Block Co. v. Barre Chelsea R. Co., 96 Vt. 526, 527, 121 A 410. Thus far, the legislature has withheld authority to review the decision of a single superior judge. Stevens v. Wright, supra, at 360; Bagley v. Tudor, 108 Vt. 163, 164, 183 A 335; Cutting v. Cutting, supra, at 384.
The right is a mere legislative privilege to be granted or withheld as may seem best to the law-making body. State v. Ploof, 116 Vt. 93, 97, 70 A.2d 575. A fortiori there can be only a statutory right of appeal from a probate court, this being a court of special and limited jurisdiction, deriving all its authority from the statute.
Thus, loud, profane language called out on the highway in the presence of passersby tends to disturb the quiet, repose and tranquility essential to the rest and comfort of well ordered society and comes within the definition of "tumultuous and offensive carriage" as used in the statute. State v. Ploof, 116 Vt. 93, 95, 70 A.2d 575. In the case for consideration, however, there is no necessity for resorting to the generic nature of the statute.
In the absence of a constitutional requirement there is no such thing as a right of appellate review independent of a statute granting it. The right is a mere legislative privilege to be granted or withheld as may seem best to the lawmaking body. State v. Ploof, 116 Vt. 93, 97, 70 A.2d 575. A fortiori there can be only a statutory right of appeal from probate court, this being a court of special and limited jurisdiction, deriving all its authority from the statute. It follows that the probate court has only such authority to allow an appeal as is given by the statute.
The crime charged here is a breach of the peace by tumultuous and offensive carriage. This term embraces an endless variety of acts and incidents as shown by cases in this Court from State v. S. S., 1 Tyler 180, to State v. Ploof, 116 Vt. 93, 95, 70 A.2d 575, so consideration of the attending circumstances is particularly important. The State makes no claim that the sale in question was unlawful and agrees with the respondent that the fact that injuries occurred three weeks after the sale is immaterial.