State v. Anna Felch

• Decision Date: 19 November 1918
• Parties: STATE v. ANNA FELCH
• Court: Vermont Supreme Court

105 A. 23

92 Vt. 477

STATE v. ANNA FELCH

Supreme Court of Vermont

November 19, 1918

February Term, 1918.

INDICTMENT FOR MURDER. Plea, not guilty. Trial by jury at the June Term, 1917, Orange County, Butler, J., presiding. Verdict, not guilty. The State seasonably objected and excepted to certain rulings of the court in the admission of evidence, to certain rulings of the court in the exclusion of evidence, and to certain statements made by respondent's counsel in argument to the jury, which exceptions were allowed and the case passed to the Supreme Court before final judgment. The respondent seasonably objected and excepted to the allowance of any exceptions by the State to rulings of the court, on the ground that the law allowing exceptions in the trial of criminal causes by the State is unconstitutional and void. The respondent, after verdict, moved for judgment upon the verdict of not guilty, and excepted to the refusal of the court to render a judgment upon the verdict. The opinion states the other facts in the case.

Her motion to dismiss is overruled, for reasons already sufficiently set forth.

The exceptions of the State are sustained, and the case is remanded for retrial.

Herbert G. Barber, Attorney General, and John C Sherburne, State's Attorney, for the State.

Richard A. Hoar, Ellen M. M. Hoar, and Alland G. Fay for the respondent.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

A jury acquitted this respondent of the charge of murder, and the State brings the case here for review on exceptions taken pursuant to G. L. 2598. The respondent also brings up an exception to the refusal of the trial court to render judgment on the verdict and order her discharge and she also files in this Court a motion to dismiss the exceptions of the State insisting, first, that by proper construction the statute referred to only gives the State the right to except to such preliminary rulings as may be made before the jury is sworn; and, second, that, if not so construed, the statute provides for putting a respondent in second jeopardy and is therefore unconstitutional and void.

We accept as unquestionably sound the claim of the respondent that in order to justify an exception by the State in a criminal case, it must be authorized by an express and valid statute. That the statute here in question undertakes to authorize such exceptions we have no doubt. It must be admitted that its language is not happily chosen, and that its true meaning is not at first reading entirely clear. But we cannot believe that it was the legislative purpose to provide for an exception to rulings upon demurrers and like questions alone. There is little reason or excuse for such a statute, and if that was all that was intended, it would have been an easy matter to have made it manifest. It is much more reasonable to suppose that the Legislature intended to provide a right of exception to the State equal in all respects to that possessed by the respondent. The language used indicates this. The second section provides that this Court shall hear the questions raised and render final judgment, or remand the case for "further trial," or other proceedings. The respondent insists that this expression sustains her interpretation of the statute. To this we cannot agree. If the Legislature had intended to limit the State to rulings preceding the empanelling and swearing of the jury, it naturally would have said "or remand the case for trial"; for, according to her interpretation, the actual trial had not begun when the exception was taken. Evidently the theory on which this statute is drawn is that the proceedings on remand would be a continuation of the trial already had, and not another new trial in any proper sense, though often spoken of in that way. We hold, then, that the terms of this statute rightly understood, authorize exceptions by the State, reserving just such questions as are here argued; and all others arising during the course of the trial.

On considering the constitutionality of the statute, we shall omit reference to statutes merely giving the prosecution the right of exception to such preliminary rulings as we have referred to, and shall pay no attention to statutes giving the prosecution the right of exception to other questions for the sole purpose of settling the law for future guidance, as decisions under them will afford us no assistance in the solution of the questions here presented. We shall assume, though it has been doubted (State v. Lee, 65 Conn. 265, 30 A. 1110, 27 L.R.A. 498, 48 Am. St. Rep. 202; United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445), that it was the well-recognized doctrine of the ancient common law that no man could be twice put in jeopardy for the same offence. We are mindful of the fact that this rule was deemed of such importance that it was given a place in Magna Charta, and that it was regarded so vital to the maintenance of the Anglo-Saxon concept of individual liberty that it was made a part of the Constitution of the United States by the Fifth Amendment, and in one form or another has found expression in the Constitutions of a majority of the states of the Union. Under such constitutional provisions it has been consistently and uniformly held that any legislative attempt to confer upon the state the right of exception for the correction of trial errors was futile.

A statute of California attempted to give the state a right of appeal to the Supreme Court on all questions of law arising in prosecutions for felonies. In People v. Webb, 38 Cal. 467, it was held that the respondent's acquittal in the court below was final, and that he could not again be put in jeopardy. A statute of Illinois attempted to give the complainant a right of appeal in prosecutions for illegal fishing. In People v. Miner, 144 Ill. 308, 33 N.E. 40, 19 L.R.A. 342, it was held that the respondent's acquittal below was a complete protection from another trial and that the statute was unconstitutional. In West Virginia an act of the Legislature attempted to give the state a right of appeal in criminal cases, but it was held in Ex parte Bornee, 76 W.Va. 360, 85 S.E. 529, L.R.A. 1915F, 1093, that the act was unconstitutional.

By the provisions of a certain military order regularly promulgated for the government of the Philippine Islands, the right of the government to appeal from a judgment of acquittal in a court of first instance was recognized. But in Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114, 1 Ann. Cas. 655, it was held that this was repugnant to a provision that "no person for the same offence shall be twice put in jeopardy of punishment," contained in an act of Congress subsequently passed for the administration of the affairs of the Islands, and was repealed by it. Though the question was not directly involved, it was said in State v. Hart, 90 N.J.L. 261, 101 A. 278, L.R.A. 1917F, 985, that "it is clear that it is not within the constitutional power of legislative authority to confer by statute" upon the state the right of exception in criminal cases.

The foregoing views seem to be accepted as sound by one or two other cases not now at hand and are generally approved by text-writers and commentators. However, the theory that the jeopardy involved is single and continuous until a result is reached that is free from error is not without its defenders. See State v. Lee, supra, and dissenting opinion by Holmes, J., in Kepner v. United States, supra. Though not especially relied upon by the respondent, it is not improper in view of the importance of the case, to make brief reference to the Constitution of the United States. The provisions of the Fifth Amendment to that document, wherein double jeopardy is prohibited, are not intended to limit the powers of the state governments in respect to their own people, but merely operate as restraints upon Federal action. Ex parte Spies, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151. And the due process of law referred to in the Fourteenth Amendment, wherein restraint is imposed upon state action, is due process according to the Constitution and laws of the particular state involved, provided the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" are not violated. Ex parte Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519. It cannot be said that the act in question abridges the privileges or immunities of United States citizenship in violation of the terms of the Fourteenth Amendment simply because it offends one of the specific provisions of the Fifth Amendment. Although it has been vigorously asserted that the rights specified in the first eight amendments are among the privileges and immunities protected by the Fourteenth Amendment, and although this view has been defended by many distinguished jurists, including several Justices of the Federal Supreme Court, that Court holds otherwise and asserts that it is the character of the right claimed, whether specified as above or not, that is controlling. Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 494, 44 L.Ed. 597.

It is interesting to note in this connection that the question whether double jeopardy amounts to want of due process under the Federal Constitution was suggested and its importance recognized by Mr. Justice Harlan in Dreyer v Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79, but was left undecided. It is also of interest to note that in Ex parte Ulrich, (D. C.) 42 F. 587, it was held by Judge Philips that, inasmuch as it is a principle of the common law that no one shall be twice placed in jeopardy for the same offence, the trial...