Reed v. Allen

• Decision Date: 16 June 1959
• Docket Number: No. 1878,1878
• Citation: 73 A.L.R.2d 1161,121 Vt. 202,153 A.2d 74
• Parties: , 73 A.L.R.2d 1161 Frederick M. REED, as Attorney General of the State of Vermont, v. O. Fay ALLEN, Jr., Justice of the Peace, Henry F. Black and Peter P. Plante, as Attorneys for one Robert O. Welch, and Richard E. Davis, as Attorney for one Frank Carpenter.
• Court: Vermont Supreme Court

Page 74

153 A.2d 74

121 Vt. 202, 73 A.L.R.2d 1161

Frederick M. REED, as Attorney General of the State of Vermont, v. O. Fay ALLEN, Jr., Justice of the Peace, Henry F. Black and Peter P. Plante, as Attorneys for one Robert O.

Welch, and Richard E. Davis, as Attorney

for one Frank Carpenter.

No. 1878.

Supreme Court of Vermont.

June 16, 1959.

Frederick M. Reed, Atty. Gen., pro se.

Henry F. Black and Peter P. Plante, White River Junction, and Richard E. Davis, Barre, pro se.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HULBURD, Chief Justice.

This is a petition for a writ of prohibition brought to this Court by Frederick M. Reed as Attorney General of the State of Vermont whereby he seeks to restrain the petitionees from taking depositions for use in criminal cases under No. 217 of the Acts of 1957.

On November 18, 1958, a Grand Jury in Orange County Court returned indictments against Robert O. Welch and Frank Carpenter, charging each with the first degree murder of one Orville Gibson. These indictments were docketed in Orange County Court under Nos. 9720 and 9721 respectively. Petitionees Henry F. Black and Peter P. Plante appear as attorneys and counsel for the said Robert O. Welch in connection with the said charge of murder pending against him. Petitionee Richard E. Davis appears as attorney and counsel for the said Frank Carpenter in connection with the said charge of murder pending against the latter.

Under date of February 17, 1959, petitionee Allen, a justice of the peace issued Notices of Taking Depositions. One such notice was captioned 'State of Vermont vs. Robert Ozro Welch--Orange County Court No. 9720.' The other notice was similarly captioned 'State of Vermont vs. Frank Carpenter--Orange County Court No. 9721.' These notices stated that 'In accordance with the provisions of No. 217 of the Public Acts of 1957 notice is hereby given of the taking of the testimony of the following named individuals, by depositions upon oral examination before the undersigned magistrate * * *.' They further commanded petitioner Reed, as Attorney General, and John Morale, as State's Attorney in and for Orange County, to appear before petitionee Allen, justice of the peace, to attend the taking of testimony of the persons named in each of the notices. As to Welch the date set was March 11, 1959 and as to Carpenter, it was March 12, 1959.

Upon receiving these notices, the Attorney General reacted by filing in Orange County Court identical motions, (one as to each respondent) in accordance with a provision of the act under which the petitionees were seeking to obtain the depositions. These motions indicated that certain of the persons whose depositions had been ordered were witnesses before the grand jury, that some of them were also state police officers who had investigated the facts giving rise to the indictments against Welch and Carpenter, and that one of such persons, Harvey B. Otterman, Jr., as the then State's Attorney of Orange County, had presented evidence to the Grand Jury which returned such indictments.

Hearing was had on these motions on March 5, 1959 and late in the afternoon of March 9, 1959, the County Clerk was notified by the presiding judge that the State's motions had been denied with exceptions to the State. The following day, which was the day before that fixed for the taking of the first of the depositions, the petitioner came to this Court seeking a writ of prohibition. A temporary writ immediately issued staying the taking of the depositions.

The complaint thus addressed to us, after setting forth the facts which we have related, goes on to specify the following grounds as warranting the issue of the writ. '(a) That No. 217, Acts of 1957, under and pursuant to the authority of which act the depositions here in question are sought, provides for depositions in civil cases only, and does not authorize nor permit the taking of depositions in criminal cases;

(b) That of the persons named in said Notices of Taking of Depositions whose testimony is sought to be taken, all but three were witnesses before the Grand Jury which returned indictments for murder against the said Welch and the said Carpenter;

(c) That evidence presented to a Grand Jury is not available to persons indicted thereby unless so ordered by the Supreme Court or a County Court, yet the procedure sought to be used herein through depositions would render null and void the law relating to such evidence.'

Following the foregoing, the Attorney General alleged that 'the unrestrained use of deposition procedures in criminal cases would be a complete departure from the criminal procedure which has developed in Vermont over the years * * * that it might or would subvert the processes of justice by subjecting witnesses to intimidation, fear, threats and coercion at the hands of persons accused of crime or their agents * * *' and that 'the gravity of the matters complained of and the exigency of the situation presented' require this Court to act as requested and that 'no plain, speedy, efficient or adequate remedy (is) available to the State or its representatives to prohibit the taking of the depositions hereinbefore referred to except an order of this Honorable Court in the form and manner hereinafter prayed for * * *.'

Petitionee Allen has appeared pro se but has filed no pleadings. Petitionees Black, Plante and Davis have appeared and filed demurrers and answers which they seek to support by their combined identical briefs. They have reduced their contentions to two propositions: 1. A writ of prohibition is not proper under the facts and law applicable to this case. 2. No. 217 of the Acts of 1957 authorizes the taking of depositions in criminal cases.

Since this second proposition is of such importance that it ought not to go undetermined in any event, we will proceed at once to given it our attention.

The only part of the Act to which the petitionees have invited our special attention is the opening section which reads as follows:

'Section 1. When depositions may be taken. Any party to any action pending in a county court, court of chancery or municipal court may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes * * *.'

Having singled out the foregoing section, the petitionees further reduce their focus to its opening words, 'any party to any action,' as being 'the only words in the Act which pertain directly to the question of who may take a deposition.' They argue that the word 'action' is broad enough to include both criminal and civil causes, and, since this is so, the Act must be understood to have included both.

No doubt the word 'action' may at times have the breadth of meaning ascribed to it by the petitionees. Cases have so held. Other cases, however, in a different context have reached an opposite conclusion. All this only serves to show that the word 'action' is not to be considered by itself, that it confronts us with nothing determinative. We must look at the Act as a whole to discover its meaning. First National Bank of Boston v. Harvey, 111 Vt. 281, 292, 16 A.2d 184.

This brings us to the fundamental rule in the construction of Statutes: it is to ascertain and give effect to the intention of the Legislature. Davidson v. Davidson, 111 Vt. 24, 27, 9 A.2d 114. All other rule of construction are but applications of the master rule itself and are mere implementation of it. The question arises, then, what is there which will throw light on the Legislature's intent in enacting No. 217 of the Acts of 1957?

At the outset it is essential to have in mind that no right to take depositions existed at common law. Pingry v. Washburn, 1 Aikens 264, 268. Later in the case of Clark's Adm'r v. Wilmington Savings Bank, 1915, 89 Vt. 6, 8, 93 A. 265, 266, the Court stated it to be 'well-established doctrine that the authority to take testimony by way of deposition is in derogation of the rules of the common law, and has always been strictly construed.' In re Petition of Central Vt. Public Service Corp., 115 Vt. 204, 207, 55 A.2d 201, and In re Peters' Estate, 116 Vt. 32, 35, 69 A.2d 281, are to the same effect.

The construction which the petitionees offer is not strict but expansive and it gets them into immediate difficulty. If followed out, its inclusiveness would be such that the State, on its part, would be free to take the depositions of respondents. Clearly such a procedure would run counter to the constitutional privilege as to giving evidence against one's self. In construing any statute the Court will presume that the Legislature intended to carry out the direction of the Constitution. City of St. Albans v. Avery, 95 Vt. 249, 260, 114 A. 31. Where a statute is susceptible of two constructions, one of which supports the act and the other renders it unconstitutional, the former will be adopted though the latter may be the more natural interpretation of the language used. State v. Clement Nat. Bank, 84 Vt. 167, 200, 78 A. 944. Moreover, the construction contended for by the petitionees would, in practical effect, abrogate V.S. 47 §§ 2369 and 7484 which provide for the controlled secrecy of grand jury and inquest proceedings...