Morris, In re
| Decision Date | 04 April 1967 |
| Docket Number | No. 1966,1966 |
| Citation | 126 Vt. 297,229 A.2d 244 |
| Parties | In re Winston MORRIS. |
| Court | Vermont Supreme Court |
Peter Forbes Langrock, Middlebury, for petitioner.
Alan W. Cheever, Asst. Atty. Gen., for the State.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
The petitioner, advised by counsel entered a plea of guilty to charges of grand larceny and burglary.He was sentenced to the state's prison at Windsor, where he now is.He has applied for post conviction relief on the grounds that he was prosecuted on an information issued by the state's attorney on his oath of office alone.This, he says, violates both Chapter I, Article 11, of the Vermont Constitution, and the Fourth Amendment of the United States Constitution.It is his position that compliance requires that there be an accompanying affidavit, or a showing before a magistrate, demonstrating that facts are present constituting probable cause to charge a respondent.The lower court denied relief, and he is here on appeal.
His issue has already been resolved against the petitioner by In re Davis, 126 Vt. --, 224 A.2d 905.The fact that preferable procedures may exist cannot turn this Court aside from its duty to say whether or not the one at issue meets constitutional standards.We must test for validity, not merit.
Moreover, this is an issue that must be timely raised.If it is to the charged that the grounds were insufficient to support the complaint,...
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State v. Kelly
... ... If the court and jury do not so find, then perhaps there was no probable cause, but the defendant will go free ... The defendant unquestionably has a right to contest probable cause to prosecute at the time the prosecution begins. This is a waivable right. In re Morris, 126 Vt. 297, 298, 229 A.2d 244 (1967) ... We do not categorically say that probable cause to prosecute cannot be tested at the trial stage. We do say that on these facts no continued incarceration or harassment by spurious or insufficient prosecution appears possible ... ...
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State v. Blaine
... ... State v. Perry, 131 Vt. 75, 300 A.2d 615 (1973); In re Morris, 126 Vt. 297, 229 A.2d 244 (1967). We note that it was not so raised either in this case, or in No. 160-73, the case in which the information issued. The argument has some ingenuity, but we are not persuaded that a claimed procedural defect, waived if not raised by motion, can be used as ... ...
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State v. Ovitt
... ... This issue was fully explored and resolved against the respondent by State v. Barr, 126 Vt. --, 223 A.2d 462, and In re Davis, 126 Vt. --, 224 A.2d 905, Also, see In re Morris, Vt., 229 A.2d 244. Therefore, further comment on this point is unnecessary ... The respondent claims prejudicial error in portions of the general charge, and additional instructions, given to the jurors at the opening[126 Vt. 323] of the term of court. This relates to the ... ...
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Mahoney, In re
... ... 465] on his official oath be supported by affidavit to confirm the truth of the facts alleged in the complaint. Nor has the State been required to adopt the grand jury procedure in all felony prosecutions. State v. Ovitt, 126 Vt. 320, 322, 229 A.2d 237; In re Morris, 126 Vt. 297, 298, 229 A.2d 244; In re Davis, supra, 126 Vt. at 144, 224 A.2d 905; State v. Barr, 126 Vt. 112, 116, 223 A.2d 462. See also, State v. Cabrera, 127 Vt. 193, 194, 243 A.2d 784, cert. denied, 393 U.S. 968, 89 S.Ct. 404, 21 L.Ed.2d 379 ... We recognize that the law of ... ...