Greenough, In re

• Decision Date: 02 May 1950
• Docket Number: No. 1768,1768
• Citation: 75 A.2d 569,116 Vt. 277
• Court: Vermont Supreme Court
• Parties: In re GREENOUGH.

Page 569

75 A.2d 569

116 Vt. 277

In re GREENOUGH.

No. 1768.

Supreme Court of Vermont.

May 2, 1950.

Effingham Evarts, Windsor, for petitioner.

Palmer D. Ainsworth, State's Attorney, Springfield, for the State.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY and ADAMS, JJ.

CLEARY, Justice.

This is a petition for a writ of habeas corpus brought directly to this court. A commissioner was appointed to hear the evidence and he reported the following facts: The petitioner is now imprisoned in the Vermont State Prison by virtue of a mittimus issued by the Hartford Municipal Court. In 1947 the sheriff of Windsor County caused to be placed on a police teletype general broadcast the information that the petitioner was wanted bacause of a crime which it was claimed he had committed in the State of Vermont. The sheriff took this action on his own responsibility. No request for the petitioner's arrest was ever made by the Governor of Vermont. On February 6, 1949, the petitioner was arrested in Gardner, Massachusetts, on two complaints, one charging him with vagrancy and the other charging him with the crime of deserting an infant and with being a fugitive from justice from the State of Vermont. While in custody there, the petitioner told a police sergeant and a jailer that he knew what he was wanted for in Vermont. They informally advised him to go back and face the charges and not fight extradition proceedings and that in their opinion he would 'get a better break' from the Vermont authorities if he took that course.

On February 7, 1949, the petitioner was brought before the district court in Massachusetts and arraigned on both charges. He pleaded 'Not guilty' to the vagrancy charge, was found guilty, and the case was ordered filed. He was informed, in open court, that he was entitled to counsel on the fugitive from justice charge and entitled to test the legality of extradition proceedings. He was further informed that he could go back voluntarily. Thereafter the petitioner signed a waiver prepared and read to him by the clerk of the district court. He did so voluntarily but without reading it himself and understood the general nature and purport of the document. The last sentence is as follows: 'I hereby waive the issuance of any warrants and all other procedure incidental to interstate rendition, do not desire to test the legality of my arrest as a fugitive from justice, and elect to return under proper custody to the jurisdiction of the State of Vermont.'

Thereupon, upon the order of the judge of the district court the petitioner was delivered into the custody of the sheriff of Windsor County, transported to Woodstock and confined in the Windsor County jail. The sheriff of Windsor County had a complaint and warrant, issued by the Hartford Municipal Court on February 7, 1949, in his possession when he took the petitioner into custody at Gardner. He read the complaint to the petitioner for the first time shortly after he and the petitioner reached the Windsor County jail.

The complaint signed and sworn to by the State's Attorney charges 'that James Greenough of Pittsford, in the County of Rutland at Stockbridge in said County of Windsor, on the 15th day of November, A. D. 1946: did then and there, being over the age of sixteen years and having custody, charge and care of a child under the age of ten years, to wit, the age of one month, abandon or cause to be abandoned said child, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State'.

On February 14, 1949, the petitioner was arraigned on this complaint in Hartford municipal court. The complaint was read to him and he was advised by the judge that he was charged with a felony and was entitled to have an attorney at the expense of the State. The petitioner insisted that he did not want a lawyer but desired to plead guilty and get it over with. The judge advised the petitioner that the offense was a serious one and that a plea of guilty would result in a prison sentence. The petitioner pleaded guilty, judgment of guilty was entered on the plea, sentence was imposed and the petitioner was committed to the State prison.

The mother of the child referred to in the complaint is one Carrie Farr. The child was born out of wedlock and Carrie Farr claims that the petitioner is its father. Carrie Farr was arrested on February 8, 1949, on a complaint charging the same offense as that in the complaint against the petitioner. She pleaded guilty, was adjudged guilty and sentenced to imprisonment. Petitioner's case was treated as a companion case to that of State v. Farr. The arraignments and sentences were at the same time, but the cases were not treated as one case. After pleading guilty, the petitioner offered to marry Carrie Farr and offered to support the child. At the time he entered his plea the petitioner understood what he was accused of doing, had an adequate understanding of the seriousness of the charge and that he was entitled to be represented by counsel at the expense of the State if he so desired. In entering his plea of guilty he was motivated in part, but in part only, by a belief that he would receive more lenient treatment then if he stood trial. He also believed that he was guilty of the facts set forth in the complaint.

On September 2, 1949, while employed outside the prison in the custody of guards, the petitioner escaped, was later captured, returned to the prison and on September 19, 1949, was arrested upon a complaint and warrant charging him with escape from the lawful custody of the warden of the State prison.

The petitioner now claims: 1. That the Vermont and Massachusetts extradition statutes were not complied with and that, therfore, the municipal court had no jurisdiction over petitioner's person. 2. That the information upon which he was charged in the municipal court does not state facts constituting a crime known to the laws of Vermont and that, therefore the court had no jurisdiction over the subject matter. 3. That the petitioner should be discharged from custody because he was not represented by counsel. 4. That the proceedings in the municipal court and prior thereto were not according to due process of law as prescribed by section 1 of the Fourteenth Amendment of the Constitution of the United States and Article 10 of Chapter 1 of the Constitution of Vermont. 5. That, not having been lawfully convicted in the first instance, he was not in the lawful custody of the warden of the State prison when he attempted to escape and, therefore, did not violate V.S. 1947, § 8532 in such attempt.

It is virtually a universal rule of law that where a person accused of crime is found within the territorial jurisdiction and is held under process legally issued from a court of that jurisdiction, neither the jurisdiction of the court nor the right to put him on trial for the offense charged is impaired by the manner in which he was brought from another jurisdiction. Dominguez v. State, 90 Tex.Cr.R. 92, 234 S.W. 79, 18 A.L.R. 503, 509; 165 A.L.R. 948; 22 C.J.S., Criminal Law, §§ 144, 146, pages 236, 242; 35 C.J.S., Extradition, § 21, page 350. That is the law of this State and, therefore, the municipal court had jurisdiction of the petitioner's person. State v. Brewster, 7 Vt. 118, 121; In re Miles, 52 Vt. 609, 610, 611.

The prosecution was brought under V.S. 1947, § 8261 which reads as follows: '8261. Cruelty to children under ten by one over sixteen. A person over the age of sixteen years, having the custody, charge or care of a child under ten years of age, who wilfully assaults, ill treats, neglects or abandons or exposes such child, or causes or procures such child to be assaulted, illtreated, neglected, abandoned or exposed, in a manner to cause such child unnecessary suffering, or to endanger his health, shall be imprisoned in the state prison not more than two years or fined not more than $500.00, or both.'

The petitioner claims that the complaint in question is fatally defective because it failed to allege that the act complained of was done 'wilfully' and 'cruelly' and 'in a manner to cause such child unnecessary suffering' or 'to endanger its health', that it alleges in the disjunctive two crimes, abandonment and causing abandonment and that it alleges elements that might bring it within either V.S. 1947, § 8260 or § 8261.

The word cruelty appears only in the title to the section of the statute in question so it was unnecessary to allege that the abandonment was cruel. It is only when the language of the act itself is doubtful in meaning that the title is considered. State v. Taranovich's Estate, 116 Vt. 1, 5, 68 A.2d 796. But even if the word cruelly was included in the text and necessary to be alleged in the complaint that could be done by amendment as hereinafter shown. It was essential that the complaint allege that the abandonment was wilful and that it was done in a manner to cause the child unnecessary suffering or to endanger its health. State v. Gosselin, 110 Vt. 361, 365, 6 A.2d 14. The omission of these words would have been fatal on demurrer or on a motion in arrest of judgment. But this does not mean that the petitioner would have been discharged for our law is well settled that an information or complaint of a state's attorney can be amended, both in form and substance. State v. White, 64 Vt. 372, 373, 24 A. 250; State v. Meacham, 67 Vt. 707, 32 A. 494; State v. Hubbard, 71 Vt. 405, 406, 45 A. 751; State v. Austin, 72 Vt. 46, 47 A. 102; State v. Barrell, 75 Vt. 202, 204, 54 A. 183, 98 Am.St.Rep. 813; State v. Palmer, 94 Vt. 278, 281, 283, 110 A. 436; State v. Ryea, 97 Vt. 219, 221, 122 A. 422. What we have already said applies as well to the claim that the crime alleged was in the disjunctive and that it alleges elements that might bring it within either V.S. 1947, § 8260 or § 8261. The complaint was defective in both form and substance. It did not...