CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF VERMONT. BENNINGTON COUNTY, MANCHESTER FEBRUARY TERM, A. D. 1803. STATE against ELIAS KITTLE, BENJAMIN SHER- When an indictment, THE defendants were indicted before the County Court. The indictment contained four counts: the which contains three first for a riot, the fourth for a common assault has been presundry counts, and battery. They went to trial in the lower Court, and the Jury found them guilty only on the fourth against several sented at the County Court, defendants, and they are acquitted on all the counts save one, and appeal, although on arraignment they plead generally not guilty, the Court will not compel them to go to trial on those counts on which they had been acquitted at the lower Court. State count. They appealed to this Court, and now a Kittle et al. question is made, whether the defendants, who had V. been arraigned and pleaded not guilty to the indictment, were held to defend on the three first counts in the indictment. It is insisted for the State, that the appeal set the whole judgment afloat, and the defendants must be tried as if the indictment had been presented to this Court; that no injury can accrue to the defendants from a trial upon all the counts; for if they are innocent of the charges in the three first counts in the indictment, a trial upon them cannot injure. For the defendants it was contended, that where a charge is single in an indictment, and indeed in every case where the accused is acquitted in the County Court, it has never been understood that the government had a right of appeal. In such cases it has been the uniform practice, since the existence of the government, for the defendant to go without day from the County Court. That it would be a strange perversion of this practice to oblige the defendants, who have been acquitted of the main charges of an indictment contained in several counts, if they chanced to be convicted of a trifling breach of the law counted upon in the same indictment in the lower Court, to be subjected, on appeal, to another trial upon those counts upon which they had been acquitted. It is said, if they are innocent no injury can happen to them. We consider it a serious injury. It certainly is a heavy expense, to be constrained to bring a great number of witnesses on the stand, many of them from a great distance to prove State V. our innocence. It certainly will operate a surprise upon the defendants, who, relying on known and Kittle et al. established practice, have omitted to summon their witnesses as applicable to the three first counts in this indictment. - Curia. Let the respondents go to trial on the fourth count of the indictment only. The Court were not availed of their acquittal in the lower Court of the three first counts in the indictment, or they would have directed the clerk to arraign the defendants on the fourth count only. The clerk will rectify the entry. Richard Skinner, State Attorney. Nathaniel Chipman and Daniel Chipman, for de fendants. MEMORANDUM. BALDWIN'S CASE. no power to or draw himself AT this term the Grand Jury came into Court, The Court have and stated by their foreman, that a complaint had der a Grand been exhibited to them, charging Silas Baldwin, one Juror to withof their fellows, with an offence. That they consider- from the panel in any particued it improper to proceed in the examination of wit- lar case. nesses in the presence of the person accused. That they had desired him to retire, but that he had declined, and requested the Court to order him to retire during this particular investigation. Baldwin's Curia. The Court consider that a Juror, circumstanced as Silas Baldwin is, would willingly withdraw himself during an investigation in which he is so deeply interested. But the Court do not consider themselves as having power to order a Grand Juror to withdraw himself from the panel in any particular case. The statute provides, that there shall be eighteen Grand Jurors summoned; and if they do not all appear, it is the constant practice of the Court to fill the panel by tales, while twelve of them can find a bill of indictment. This surplusage is designed to guard against the injury to public justice which might arise if it were necessary that the whole panel should unite in a presentment, as a Petit Jury must in a verdict. In such case the self-interested or the near relative might prevent an indictment. In the present case no serious injury can arise to the government from the personal presence of the accused. The Jury will proceed in their duty, and it will be their concern to see that the Juror's conduct, which is certainly calculated to impress an unfavourable opinion of him, does not enter into their decision upon his case. The Grand Jury presented a bill of indictment against Silas Baldwin, and the next term he was convicted by verdict of the Petit Jury. AN INDEX TO THE PRINCIPAL MATTERS. A Abatement. When a person, not a freeholder, or being Acts, Private. 267 423 The court are not held, judicially and ex Accessary. A person may be held to answer aħ informa- An In Action. 249 1 action will lie for the advancing money 85 An action, on the case for a libel, will lie An |