State ex rel. McLetchie v. Laconia Dist. Court

• Decision Date: 09 October 1964
• Citation: 106 N.H. 48,205 A.2d 534
• Parties: . Supreme Court of New Hampshire
• Court: New Hampshire Supreme Court

Page 534

205 A.2d 534

106 N.H. 48

STATE ex rel. Norman McLETCHIE et al. v. LACONIA DISTRICT COURT.

Supreme Court of New Hampshire.

Argued Oct. 6, 1964.

Decided Oct. 9, 1964.

William Maynard, Atty. Gen., and R. Peter Shapiro, Asst. Atty. Gen., for the State.

Wescott & Millham, Peter V. Millham, Laconia, for Russell Fielders.

PER CURIAM.

Since the complaint charged the defendant Fielders with an offense beyond the jurisdiction of the Laconia District Court to try, its jurisdiction was limited to binding the defendant over to the Superior Court pending action by the grand jury. RSA 502-A:11, 502-A:13 (supp). In such case the statute provides that the defendant shall be committed '[i]f just cause appears * * * to hold the accused to answer at the superior court * * *' for an offense not bailable by the justice. RSA 596:7.

The purpose of the preliminary hearing is to determine that an offense has been committed and that there is probable cause to believe the defendant has committed it. Orfield, Criminal Procedure From Arrest To Appeal, 90. See Id., p. 72; 14 Am.Jur. Crim.Law, 935, § 241. As otherwise stated, the primary purpose of the hearing is to 'inquire concerning the commission of crime and the connection of accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there is probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial.' 22 C.J.S. Criminal Law § 331, p. 843. It is equally well settled that the hearing is not a judicial trial of the issue of the guilt or innocence of the accused, but rather a judicial inquiry to determine whether reasonable ground or 'probable cause' exists for detention of the accused pending presentation of evidence to a grand jury. See State v. Spindel, 24 N.J. 395, 407, 132 A.2d 291. Thus the defendant is not entitled to a full-fledged criminal trial in the District Court, which has no jurisdiction to determine guilt. Questions apart from the issue of whether probable cause is established will be determined by the Superior Court, rather than on preliminary hearing before the District Court.

In this jurisdiction, by practice and statutory provision, a defendant may examine witnesses at a preliminary hearing, and may present witnesses on his own behalf. RSA 596:6 authorizes the justice upon preliminary examination to exclude from the place of examination and to keep separate and apart from each other, '[a]ny of the witnesses for or against the accused.' (Emphasis supplied). The plain import of this provision, that witnesses for the accused are to be heard, is confirmed by examination of the provisions of the Massachusetts statute from which RSA 596:6, supra, was originally taken. Massachusetts General Statutes (1860) ch. 170, § 22. See marginal note, Report of the N. H. Commissioners to Revise the Statutes (1867) c. 241, § 20; General Statutes of New Hampshire (1867) 240:20. Section 21 of the cited Massachusetts statute expressly provided for examination of 'the witnesses for the prisoner, if he has any.' See also, People ex rel. Taylor v. Smalley, 121 Misc. 331, 201 N.Y.S. 39 (Sup.Ct.); People v. White, 18 Misc.2d 56, 188 N.Y.S.2d 585 (Cty.Ct.).

That such was the practice in this jurisdiction before adoption of G.S. (1867) 240:20, supra, is indicated by the early 'Form of the Record of Examination' providing in part as follows: 'and thereupon after hearing the evidence offered, as well...