Davis, In re

• Decision Date: 06 December 1966
• Docket Number: No. 1068,1068
• Citation: 224 A.2d 905,126 Vt. 142
• Court: Vermont Supreme Court
• Parties: In re Robert A. DAVIS.

Page 905

224 A.2d 905

126 Vt. 142

In re Robert A. DAVIS.

No. 1068.

Supreme Court of Vermont.

Dec. 6, 1966.

Joseph W. Kozlik, Rutland, for petitioner.

Albert D. Pingree, Asst. Atty. Gen., for the State.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

This petitioner was arrested on process issued as a result of criminal charges involving a felony, preferred by the state's attorney in an information filed 'on his oath of office', as permitted by 13 V.S.A. § 5652. Conviction followed. No claim is made that the statutory requirements were improperly or imperfectly carried out. The only contention is that, without some independent verification, oath or affirmation stating the evidence upon which the issuance of the arresting process was based, the proceedings are constitutionally defective.

It is not at all anomalous that one found guilty of a crime makes complaint that process issued against him without sufficient evidentiary basis. There is an important right involved, recognized in Chapter I, Article 11 of the Vermont Constitution, and in the Fourth Amendment of the United States Constitution. A person may not be subjected to arrest on a complaint knowingly unfounded, in order that he may be at the disposal of the authorities while a case is discovered against him. Permitting such practices ends up as the invidious wrong of capricious or malicious arrest at will, without restraint, and without cause. Revulsion against such action is found in our legal heritage as early as Magna Carta (chapter 38).

It is the law of Vermont that a state's attorney shall not set his hand to an official complaint by which a criminal posecution is commenced, unless he had gone far enough in a preliminary investigation to satisfy himself of the probable guilt of the party to be charged. To fail to do so is not merely irregular, it is illegal. It deprives a respondent of due process, and violates Chapter, I, Article 11 of the Vermont Constitution. State v. Donaldson, 101 Vt. 483, 486, 144 A. 684; State v. Anderson, 119 Vt. 355, 357, 125 A.2d 827. The converse is also true; compliance with these requirements renders the procedure valid under the Vermont Constitution. See State v. Stimpson, 78 Vt. 124, 139, 62 A. 14, 1 L.R.A.N.S., 1153.

The petitioner also contends that, in any event, the test of constitutionality under the United States Constitution is not met. The Fourth Amendment says, '* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * *'. The Fifth Amendment requires that infamous crimes must be charged by virtue of a grand jury presentment or indictment. The parties point to the recently revealed reach of the Fourteenth Amendment, which has, under its Due Process Clause, made aspects of the Bill of Rights applicable to state proceedings. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and see Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. But approval of this kind of procedure for determining probable cause in state courts has not, to date, been withdrawn. Lem Woon v. Oregon, 229 U.S. 586, 589-590, 33 S.Ct. 783, 57 L.Ed. 1340.

In this particular, the argument is very like the one advanced in State v. Barr, Vt., 223 A.2d 462. We say here as we said there:

The test of due process as expressed in decisions under the Fourteenth Amendment has been one reviewing the substantive effect of the state's implementation of various civil rights. Variations in procedure will not...