DeCelle, In re, 1948
| Decision Date | 25 February 1966 |
| Docket Number | No. 1948,1948 |
| Citation | 218 A.2d 714,125 Vt. 467 |
| Parties | In re Fred DeCELLE. |
| Court | Vermont Supreme Court |
Donald M. French, Lawrence Miller, Rutland, for plaintiff.
Louis P. Peck, Deputy Atty, Gen., Montpelier, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY and KEYSER, JJ.
This petitioner pleaded guilty to a complaint charging him with the rape and carnal knowledge of a female child eight years old. The time and place of the episode are alleged, and their sufficiency is not challenged. At the time he was represented by qualified, experienced counsel assigned at the arraignment, where, initially, a not guilty plea had been entered. Now, through different counsel, by virtue of a habeas corpus petition, he claims he is entitled to be released and discharged from a three to five year prison sentence, because the complaint itself did not give the name of the victim.
At the hearing on the petition the possibility that the state of the petitioner's knowledge as to the name of the child might be significant led to the appointment of a commissioner to inquire into this matter. The petitioner contended that this was an immaterial issue, and raised objections on the grounds of delay of his remedy. As a matter of fact, although the hearing on the petition was held by this Court in Rutland on the tenth of January, 1966, the commissioner completed his work so expeditiously that the matter was ready for disposition at this February term.
Before the Commissioner the petitioner interposed numerous evidentiary objections and asserted a claim of attorney-client privilegs. As a result, the commissioner was unable to determine whether or not the petitioner in fact knew the name of the child at the time he pleaded to the charge. The commissioner did find as facts the following interchange between the arresting officer and the petitioner while the officer was delivering him to jail after arraignment for want of bail:
The petitioner then stated to Trooper Reed that he 'wouldn't bend that low to do that to a little kid.'
The Trooper responded by asking, 'If you wouldn't do this what was the object of taking her up into the woods.'
To this question the petitioner replied that he was, 'just going for a walk and she just tagged along'.
The petitioner claims that the failure to allege, as a fact in the complaint, the name of the child, is a fatal defect. He says the omission renders the complaint so incomplete and uncertain that it deprives him of the ability to meet the charge, or to successfully plead its disposition in defense of a subsequent prosecution. Since the process is deficient, the petitioner argues that the state of his knowledge is immaterial. As authority for the invalidity of the complaint, he cites case law culminating in State v. Ciocca, 125 Vt. 64, 72, 209 A.2d 507, which recently held, on appeal, that failure to set out in the information the names of the persons alleged to have been incited to commit a felony by the respondent was a fatal defect, when tested by a motion in arrest of judgment.
Accepting, for the moment, the petitioner's contentions that the rule of the Ciocca case applies to statutory rape, and that the petitioner's knowledge of his victim's name is immaterial, we find that, nevertheless, habeas corpus is not available to him.
To repeat a phrase used by Justice Powers in Duchaine v. Phoenix, 100 Vt. 112, 114, 135 A. 715, 716, 'we do not need to look beyond our own decisions to find the rule of law applicable to the case presented by the record.' The governing decision for this kind of case is In re Greenough, 116 Vt. 277, 75 A.2d 569. The complaint under attack in that case was haracterized as defective in form and substance, fatally deficient at common law and under chapter I, article 10 of the Vermont Constitution, and inadequate to reasonably indicate the exact offense so as to enable the respondent to make intelligent preparation for his defense. It would not have withstood either demurrer or motion in arrest of judgment. But, after plea of guilty and judgment thereon, habeas corpus was unavailing as a remedy. In re Greenough, supra, 116 Vt. 277, 281-282, 75 A.2d 569.
The denial stems from the right of the prosecutor on trial, to meet a challenge to sufficiency by amending the complaint. This right applies to both form and substance. In re Greenough, supra at 281, 75 A.2d 569, and is, in this state, liberally construed. State v. Pelletier, 123 Vt. 271, 273, 185 A.2d 456.
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State v. Barr
...for the actual commission of that felony. State v. Hodgdon, 89 Vt. 148, 150, 94 A. 301; 13 Am.Jur.2d Burglary, § 36. See, In re DeCelle, 125 Vt. 467, 469, 218 A.2d 714. We hold that the naming of the intended victim to be kidnapped was not required by Chapter I, Article 10th of the Vermont ......
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...the framework of orderly criminal procedure, are not subject to collateral review in post-conviction proceedings. In re DeCelle, 125 Vt. 467, 469, 218 A.2d 714; In re Greenough, 116 Vt. 277, 281, 75 A.2d 569. In this instance the complaint identified the respondent and alleged the time and ......
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Petition of Dusablon, 377
...On the facts presented, it binds the petitioner in these proceedings. In re Garceau, 125 Vt. 185, 188, 212 A.2d 633; In re DeCelle, 125 Vt. 467, 469, 218 A.2d 714. Order KEYSER, J., although present when the cause was heard, did not participate in this decision. ...
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Dana Corp. v. Yusitis, 1936
...remedy, is not to operate as a universal alternate to appeal. On this proposition, the comments on habeas corpus in In re DeCelle, 125 Vt. 467, 469, 218 A.2d 714, with respect to the requirement of first following the prescribed proceedings in error are appropriate. This is the basis for th......