Morris, In re

Decision Date04 April 1967
Docket NumberNo. 1966,1966
Citation126 Vt. 297,229 A.2d 244
PartiesIn re Winston MORRIS.
CourtVermont 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.

PER CURIAM.

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, the question must be presented and preserved in the court trying the charge. State v. Intoxicating Liquor, 106 Vt. 340, 341, 175 A. 8. This is not accomplished by a mere plea of guilty to the accusation.

Judgment affirmed.

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10 cases
  • State v. Kelly
    • United States
    • Vermont Supreme Court
    • 4 Diciembre 1973
    ...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 fac......
  • State v. Blaine, s. 49-73
    • United States
    • Vermont Supreme Court
    • 3 Junio 1975
    ...raised by pretrial motion, and which was waived if not so raised. 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 ......
  • State v. Ovitt, 491
    • United States
    • Vermont Supreme Court
    • 4 Abril 1967
    ...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 The respondent claims prejudicial error in portions of the general charge, and additi......
  • Mahoney, In re
    • United States
    • Vermont Supreme Court
    • 2 Junio 1970
    ...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, 1......
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