
    LAMOILLE COUNTY,
    AUGUST TERM, 1885.
    STATE v. T. S. WHIPPLE.
    
      Criminal Lavo. Intoxicating Liquor. Pleading. Practice. Tioice in Jeopardy. R. L. s. 3859.
    1. The state’s attorney on December 12, 1883, filed information charging that the respondent, “ on the first day of January, A. D. 1882, at divers times, did sell, &c., intoxicating liquor,” &c.; Held, that evidence was admissible to prove offenses committed between May 15, 1882, and December 12, 1883.
    2. The respondent was not twice in jeopardy, although the state’s attorney filed the information, based on the same charges which the grand jury had investigated, at tlie same term, and had failed to find an indictment.
    Information filed by the state’s attorney, December 12, 1883, charging the respondent with the illegal sale of intoxicating liquor. Trial by jury, April Term, 1885, Powers, J., presiding. Verdict, guilty of three offenses.
    
      W. Brigham, for the respondent,
    cited 11 Allen, 260; 11 Met. 573; 1 Gray, 462; 7 Gray, 494; 5 Allen, 513; 4 Gray, 11; 38 Vt. 37; 39 Vt. 370; 1 Bish. Cr. Proc. 390.
    
      H. M. McFarland, for the State,
    cited 1 Bish. Cr. L. s. 856; Whar. Cr. L. s. 590; 52 Vt. 313; 1 Bish. Cr. Proc. 386; 26 Vt. 767; 1 Arch. Cr. Prac. 843; 41 Vt. 694; Heard Cr. PI. 91.
   The opinion of the court was delivered by

Walicer, J.

The information filed in County Court charges that the respondent, “at Cambridge on the first day of January, A. D. 1882, at divers times did sell, furnish, and give away intoxicating liquors without authority,” &c. In the trial of the respondent therein, no evidence was introduced tending to show offenses committed before May 15, 1882; and the County Court, against the objection of the respondent, admitted testimony tending to show that the respondent sold, furnished, and gave away intoxicating liquors between the 15th day of May, 1882, and the 12th day of December, 1883; and he was found guilty of three offenses.

I. It is claimed by the respondent’s attorney that the State was confined by the allegation of the information to proof of offenses committed on the first day of January, 1882; and that the admission of evidence tending to show offenses on other days was error.

It is a fundamental rule of criminal pleading that the material facts in an indictment or other criminal complaint must be averred with certainty as to time and place.

The form required by the statute for complaints and indictments under the liquor law requires the same certainty in averments as to time and place. This certainty in averments as to time is, perhaps, of more importance than the fact; for in ordinary cases the proof is not limited to the day alleged in the complaint. It is well settled that the time of committing an offense, except when time enters into the nature of the offense, or where the time is an essential element of the crime, may be laid and proved on any day previous to the finding of the bill of indictment, or the filing of the information or complaint, during the period within which under the statute it may be prosecuted, and that the proof is not limited to the day alleged. Wharton’s Criminal Law, Vol. 1, s. 261; State v. Munson, 40 Conn. 475; Commonwealth v. Dillane, 11 Gray, 67; State v. Brunker, 9 Reporter, 207; S. c. 46 Conn. 327.

The proof need not correspond with the allegation as to time on an indictment or complaint for selling, furnishing, and giving away intoxicating liquors under the statute; for time is not of the essence or nature of the offense. The question is, tvhether the criminal acts charged have been committed, and not when. The exact time is not material. It is sufficient if the offenses proved are not barred by the Statute of Limitations. The statute ixx relation to offenses of this character, R. L. s. 3859,' regulates the mode of pxxxceeding, ánd prescribes the form of complaixxt. And it further provides ixx s. 3860, that uxxder an indictment, &c., in the form px-escribed, every distinct act of selling, furnishing, and giving away may be proved. One count only is required for any xxumber of offenses. The information ixx this case is ixx the forxn axxd laxxguage prescribed by the statute; and uxxder it the statute, ixx terms, says every distixxct act may be proved. The language of the statute clearly covers all offexxses withixx the statutory period. Each distixxct act of sale c.oxxstitutes axx offense; and the time is wholly immaterial, except it must be withixx the pex-iod limited by the statute. To coxxstitute the offense it does not require a succession of sales as it would on axx ixxdictment for beixxg a dealer, or a commoxx seller. So both upon prixxciple .axxd upoxx the statute the evidence objected to was admissible.

II. The respoxxdexxt objected to the admission of evidence and to being tried on this ixxformation, axxd claimed the whole proceedixxgs were illegal and oppressive to him and without authority, because the offenses, charged therein covered the same period of time for which the graxxd jury of the county had, at the same term of court axxd before filing of the ixxformation, investigated complaints and charges against him for the same crime and failed to find a bill of ixxdictmexxt against him.

Giving the respondent the benefit of what he claims; to wit, that the offenses charged in the ixxformation are the' same that were investigated by the graxxd jury and for which they failed to fixxd an indictmexxt agaixxst him, he can take nothing by his exception, unless he has been twice ixx jeopardy for the same offense.

Was the ixxvestigation by the graxxd jury and their failure to find an indictment a jeopardy? If it was not, then the respondent has not been twice in jeopardy for the same offense. The constitutional guaranty does not refer to the jeopardy created by the crime committed by the person, nor to the person’s liability to indictment therefor; but to a prosecution commenced and carried on by the State. A person is not, in a legal sense, charged with a crime until an indictment is found and presented in court against him, or until a complaint or information is filed in court against him, upon which he may be arrested and brought into court.

A commencement of criminal proceedings is some form of presentment of a person in court for a crime. An investigation by a grand jury of accusations against a person for an offense and failure to find a bill is not a commencement of criminal proceedings, for it gives no cause or warrant for obtaining control of the person. It is well settled that the commencement of criminal proceedings against a person does not put him in jeopardy.

There is no jeopardy until the indictment is found, or complaint filed, the respondent arrested, jury empanelled to try him and sworn, and the case complete in all respects for trial. The jury is necessary to make the tribunal complete as concerns the respondent; and the respondent is not in jeopardy until it is complete. 1 Bish. Crim. Law, s. 1015.

It is well settled that the failure or refusal of a grand jury to find an indictment against a person, and that any criminal proceedings in court, pending or not, down to the time of trial by the jury, do not constitute a bar to another indictment for the same offense, 1 Bish. Crim. Law, s. 1014; Commonwealth v. Miller, 2 Ashm. 61; Reg. v. Newton, 2 Moody & R. 503; Commonwealth v. Drew, 3 Cush. 279; People v. Fisher, 14 Wend. 9; Harriman v. State, 2 Greene, (Iowa) 270.

It was held in State v. Champeau, 52 Vt. 313, that a nolle prosequi entered, at any stage of the trial before verdict, by order of the court, w.as not a bar to another indictment for the same offense.

We think the respondent was not brought into jeopardy twice for the same offense by being put to trial on the information in this case, and that his trial thereon was legal.

The result is the respondent’s exceptions are not sustained, and he takes nothing thereby.  