In re Durant
| Decision Date | 28 February 1888 |
| Citation | 12 A. 650,60 Vt. 176 |
| Parties | In Re LUTHER L. DURANT |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER 1887
Habeas Corpus. Heard by VEAZEY, J., November 7, 1887, and passed by him, with consent of counsel, to the Supreme Court. Petition dismissed.
It is held that the relator is not unlawfully restrained of his liberty, and the petition is dismissed. Upon motion, the relator was admitted to bail.
T J. Deavitt and Heath & Fay, for the relator.
This cause which is a habeas corpus proceeding was transmitted into the Supreme Court, under the statute and was heard by the whole court.
It is agreed that the relator was indicted for perjury by the grand jury at the September Term of Orleans County Court, 1887 that upon the bill being returned and filed, a warrant for the arrest of the relator was immediately issued, signed by the clerk, while the court was in session, and was put into the hands of L. D. Miles, the sheriff of said county for service; that, on the 28th day of September, 1887, and after said court had adjourned without day, said Miles arrested the relator in Montpelier in the county of Washington, where he lived and where there was a legal jail, and took him against his protest to Newport, and committed him to the jail in Newport, in said county of Orleans for safe keeping; that at the time of said arrest the Washington County Court was in session at said Montpelier, and the relator demanded of said Miles that he be taken before said court or one of the judges thereof for the purpose of fixing and taking bail, but the same was refused by said Miles; that on the 7th day of October, 1887, said Miles discharged the relator from his said arrest, but immediately thereafter re-arrested him at said Newport on another warrant which had been put into his hands and which was dated on the 7th day of October, 1887, and was signed by said clerk, and again committed him to said jail in Newport for safe keeping; that the first warrant, which was issued while the Orleans County Court was in session as aforesaid, commanded to have the relator forthwith before that court to answer a complaint of perjury; that the said second warrant, which was issued after the adjournment of said court, commanded to safely keep the relator so as to have him before the said Orleans County Court at the next term thereof, to answer as before; that in these proceedings the relator consented to nothing; but protested, and waived no rights.
Upon the record consisting of the complaint, the writ, and return thereon, supplemented by the above agreed facts, it is insisted that the arrest and detention of the relator was illegal for several reasons.
One reason as alleged is, that there being no Orleans County Court in session when the last warrant was issued, the clerk had no authority to issue it.
Section 819, R. L. prescribes the duties of clerks, and in paragraph III. it says: "Record any other proceedings that the court may direct, and make and sign all process regularly issuing from either of the courts aforesaid, under the direction of the judges."
It is claimed in behalf of the relator, under this paragraph, that the clerk can issue no process except as expressly directed by the judges. This is against the practical construction which this statute has received.
Neither courts nor judges have been in the habit of expressly ordering clerks to make, sign and deliver to prosecuting officers or sheriffs, warrants for the apprehension of persons indicted, but they have been issued by the clerks as an authorized duty in regular course, without express direction.
When in this State as in many others, the first step in court against the suspected person is to be taken by the grand jury, this body presents to the tribunal a written accusation of his crime; which presentment, after being returned into court, and made a part of its record by order of the court, is called an indictment. The next step is the arrest of the person charged, if not already in custody, and he is brought in and the indictment read to him in open court, and he is required to plead to it. This is called the arraignment.
The warrant for the arrest is the process regularly issuing upon the indictment. The clause "under the direction of the judges" confers upon them the right to make orders, the right of supervision, but does not require an express order to invest the clerk with authority to issue a warrant for arrest in due course. The statute requires clerks to make and keep dockets of causes pending, etc., and also to "record any other proceedings that the court may direct." The practice is for clerks to make a docket entry of each order of the court in a cause, and for courts to so direct; but I apprehend no clerk's docket in the State shows an entry of an order to issue warrants for arrest on indictments. The practice is the same in issuing executions in civil causes, and mittimuses in criminal causes. They are issued at the hand of the clerk, and usually, when regularly issued, without express order or docket entry of such order. The rendition and entry of the judgment on the docket has always been regarded as carrying with it all the authority which is required from the court to the clerk to issue such regular final process as the judgment warrants. When special action is warranted and taken, an appropriate order is made and noted. The clerk is an essential, constituent part of a court. 1 Bouvier, Law Dict. p. 325. He does not act independently of the judges but in conjunction with them, subject to direction and supervision but...
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