State v. Brewster
| Citation | 40 A. 1037,70 Vt. 341 |
| Parties | STATE v. MILDRED BREWSTER |
| Decision Date | 03 March 1898 |
| Court | United States State Supreme Court of Vermont |
January Term, 1898
INDICTMENT FOR MURDER. Plea in abatement to the indictment. Heard upon demurrer to the plea, at the September Term, 1897 Washington County, Tyler, J., presiding. Demurrer sustained plea adjudged insufficient, and indictment sufficient. Judgment that the respondent plead over. The respondent excepted and the cause was passed to the supreme court for hearing on the exceptions before final judgment.
Judgment, there is no error; that the demurrer is sustained; that the plea in abatement is insufficient, and cause remanded.
Lord & Carleton and Frank Plumley for the respondent, cited, Bish. Crim. Proc. § 862 and Thomp. and Mer. on Juries § 629; Lewis v. County, 74 N.C. 198; U. S. v. Reed, 2 Blatchf. 435; Lung's Case, 1 Conn. 428; Shattuck v. State, 11 Ind. 473; State v. Watson, 34 La. An. 669; State v. Justus, 11 Oregon, 178; Blevins v. State, 68 Ala. 92; Rothschild v. State, 7 Tex.App. 537; Burrell v. State, 16 Tex. 149; State v. Addison, 2 So. Car. (N. S.) 356; State v. McNinch, 12 S. L. 89; U. S. v. Kilpatrick, 16 F. 765; Wilson v. State, 13 So. Rep. 225; U. S. v. Simmons, 46 F. 65; People v. Sellick, 4 N. Y. Crim. Rep. 329; Welch v. State, 68 Miss. 341; State v. Bowman, (Me.) 38 A. 331; State v. Clough, 49 Me. 573; King v. Earl of Shaftesbury, 8 How. St. Tr. 759; People v. Ah Chung, 54 Cal. 398; Lawrence v. Com., 86 Va. 573; State v. Kimball, 29 Iowa 267.
Fred A. Howland, State's Attorney, for the State, cited, 1 Chitty, Crim. Law 316-318; Reg. v. Hughes, 1 C. & K. 518; Thomp. and Mer. on Juries § § 623, 631; Little v. Com., 25 Gratt. 921; 3 Russell, Crimes, 594, 595; 1 Bish. New Cr. Proc. § 857; Clark, Cr. Proc. 113; Proffatt, Jury Tr. § 57; U. S. v. Simmons, 46 F. 65; U. S. v. Reed, Blatchf. 455; Hurtado v. People, 110 U.S. 516: 1 Reeves, 2 Hist. Eng. Law 461; 4 Black. Com. 126, N. 5; Com. v. Mead, 12 Gray 167; 1 Green. Ev. § 252; Note to Com. v. Green, 12 Am. St. Rep. 894; 2 Taylor, Ev. § 942; 8 Cr. Law Mag. 711; 3 Rice, Ev. 255; State v. Bates, 48 N.E. 2; Bennett v. State, (Ark.) 36 S.W. 946; Com. v. Bradney, 126 Pa. St. 205; U. S. v. Terry, 39 F. 355; State v. Bartlett, 11 Vt. 650; State v. Newfane, 12 Vt. 422; State v. Davidson, 12 Vt. 300; State v. Brainerd, 56 Vt. 532; State v. Gravelin, referred to in State v. Ward, 60 Vt. 142; State v. Cox, 52 Vt. 473; State v. Champeau, 52 Vt. 313.
Present: ROSS, C. J., ROWELL, MUNSON, START and THOMPSON, JJ.
We have considered the respondent's plea in abatement of the indictment, as we are requested to by the counsel of both parties, upon the substantial allegations therein, and without considering whether the technical rules applicable to such pleas have been violated or complied with. The substantial facts therein alleged are, that the State's Attorney, with the consent of the court and of the grand jury, took his stenographer with him into the grand jury room, while they were receiving the testimony upon which they found the indictment; that she there took down, in short hand, the full testimony of the witnesses as they were examined, and has since written it out, or type-written it, for the use of the State's Attorney; that she was not present when the grand jury were consulting, or deliberating, nor voting, upon the case against the respondent. It is not alleged that her presence or action in any way influenced the action of the grand jury, either for or against the respondent, in finding the indictment. The single question thus presented for consideration is: Does this action of the State's Attorney, the presence and taking of the testimony by his stenographer, with the consent of the court, and her subsequent transcription of the testimony for the use of the State's Attorney, any one or all of them, furnish a lawful reason for abating the indictment? In considering this question, it must be borne in mind, that, if the constitution of the State recognizes the necessity for prosecutions of the higher crimes to be instituted by indictment by the grand jury, it has no provision touching, nor regulating, the proceedings before the grand jury. The statutes of the State provide for the selection, return and impaneling of the grand jury at certain terms of the county court; for their charge by the presiding judge; for the appointment of their foreman by the court; the form of the oath to be administered to them and to the sheriff who attends upon them; and for their indorsement and return into the court of the bills or indictments found, and not found by them. The statute also provides that the State's Attorney of his county may prosecute by information all crimes except those which are punishable by death or by imprisonment in the state prison more than seven years, and that no person shall be held to answer in court for an alleged crime, or offense, unless upon indictment except where a prosecution by information is authorized. It also provides that the grand jury shall consist of a body of eighteen, the concurrence of twelve of whom is necessary for the finding of an indictment. There is also a statute which adopts as the law of the state so much of the common law of England as is applicable to the local situation and circumstances, and not repugnant to the constitution or laws.
It is thus manifest, that the method of procedure by and before the grand jury is that pointed out in the oath administered to them, in the statutes, so far as any exist, and such as obtained at the common law, not inconsistent with the provisions of the statute law. There is no statutory provision for the appointment of a clerk, to keep a record of their proceedings, by the grand jury. Under the common law, the grand jury usually had a clerk, in some way, appointed to keep a record of their proceedings. Being a part of a court of record it is advisable that a record of their proceedings should in some manner be provided for. It has been customary for the judge in his charge to direct them to appoint a clerk from their own number to keep such a record. Such a record has usually, if not invariably been kept, showing both what matters were inquired into, the witnesses examined on each matter, the substance of their testimony, and the action of the grand jury thereon, as to whether the bill was found or not found. This record has been passed to the clerk of the court to be kept by him for the use of the State's Attorney of the county; and for the use of subsequent grand juries, that they might know what matters their predecessors had inquired into. It is not required by statute, and has not been the custom, to indorse upon the indictment the names of the witnesses upon whose testimony it is found.
By V.S 2955, "State's Attorneys in their respective counties shall prosecute for offenses committed therein, and all matters and causes cognizable by the supreme or county court, in behalf of the State; file informations and prepare bills of indictment," etc. This statute has been in force since 1787. Under it, by direction of the court, in its charge to the grand jury, the State's Attorney has uniformly attended the sessions of the grand jury, laid before them such matters as had come to his knowledge which needed to be inquired into by them, summoned and examined the witnesses, and prepared and presented indictments for them to act upon. He has sometimes been present when they have voted, and sometimes not. No oath is taken of him, except his oath of office and oath of attorney, which last binds him to be faithful and true to the interests of his client, the State. The grand jury have been usually charged that they should not allow any other attorney to appear before them without an order from the court. Such order has usually been given when the State's Attorney was disqualified in any matter, or for any reason unable to be present and examine the witnesses. They have been told that they could inquire of the court in open court, or at their room, in regard to any question of law about which they wished to be informed. Their foreman is authorized by statute to administer the oath to the witnesses, and the witnesses are uniformly sworn in the grand jury room. No oath is required of them except the oath usually administered to witnesses. If they are restrained at all, from stating publicly or to the accused, that they have been used as witnesses, and the substance of their testimony, it is not because of the oath administered, but because such action would be a contempt of the court, because of the secrecy required by the oath of the grand jury. The oath of the grand jury on this point reads, "The counsel of the State, your own counsel and that of your fellows, you shall keep secret." The oath to the officer attending them, binds him to "keep their counsel and that of the State," and "not disclose anything relative to their proceedings." The grand jury usually have been instructed that they should never disclose what any one of their number counseled in regard to any matter before them; that they should not disclose what the matter being investigated by them was, nor who the accused might be, until he was duly arrested, nor, in case complaint was made by a private complainant, should they ever disclose his name. The reasons usually given for the requirement that he should keep secret his own counsel and that of his fellows, are, freedom from fear of incurring the hatred of the accused, or his friends and witnesses; and freedom in expression of his views in regard to the matters under consideration; and that he should not disclose the name of the complainant, that there might be freedom to complain, by all persons who knew of an infraction of the criminal law. This complaint is made,...
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