State v. Barrell

• Decision Date: 25 February 1903
• Citation: 75 Vt 202,54 A. 183
• Court: Vermont Supreme Court
• Parties: STATE v. BARRELL.

54 A. 183

75 Vt 202

STATE

v. BARRELL.

Supreme Court of Vermont. Windsor.

Feb. 25, 1903.

Exceptions from Windsor county court; Rowell, Judge.

Henry Barrell was convicted of larceny on an information amended by leave of court, and brings exceptions. Affirmed.

Argued before TYLER, MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

Herbert H. Blanchard, State's Atty., for the State.

Gilbert A. Davis, for respondent.

WATSON, J. At the December term, 1902, of the county court of Windsor county the state's attorney moved to amend the information which had been filed at the preceding term of court by his predecessor in office. The respondent objected thereto on the ground that, as the present state's attorney did not file the information, he could not amend it. The objection was overruled pro forma, and the amendments were allowed and made, to which the respondent excepted. The case was then tried by jury, and a verdict of guilty rendered. The respondent moved in arrest of judgment for the insufficiency of the information. This motion was overruled, the information adjudged sufficient, and judgment rendered on the verdict; to which respondent excepted.

That an information may be amended both in matters of form and in matters of substance is well settled (State v. White, 64 Vt. 372, 24 Atl. 250; State v. Hubbard, 71 Vt 405, 45 Atl. 751); but it is contended that leave for that purpose can be granted only to the state's attorney who filed the information, because it is said to be under his oath of office; and that, his term of office having expired, the legal and proper course for the present state's attorney, if the information was defective in substance, was to enter a nolle prosequi, and then file a new information. In England, at common law, the attorney general was the sole judge of what public misdemeanors he would prosecute and he could file an information against any one whom he thought proper to select, without oath or motion, and without any opportunity for the accused to show cause against the proceedings; and the conduct, continuance, suspension, and the dropping the prosecution were left entirely to his discretion. Chit. Cr. L. 345; 4 Black. Com. 309. In this state there is no law requiring the state's attorney to make oath to an information filed by him. He is required to take the oath of office prescribed in the Constitution; but it was held in State v. Sickle, Brayton, 132, that it was not necessary for him to state in an information that he informs under his oath of office. The oath of office under which he acts is for the faithful performance of his duties as such officer, but in no sense is it an oath to the truth of the allegations set forth in an information filed ex officio by him, and it constitutes no obstacle in the way of amendments by any state's attorney who may have the matter in charge. Criminal informations are in the name of the state, and only the allegations of the state's attorney who exhibits them, and they are said by Mr. Chitty (1 Chit. Cr. L. 841) to be "analogous to declarations for the redress of a personal injury, except that the latter are at the suit of a subject for the satisfaction of a private wrong," and the former are "for the punishment for offenses affecting the interests of the public." Lord Comyn says (Com. Dig. tit. "information"): "An information is a declaration of the charge or offense against any one at the suit of the king." And in Rex v. Wilkes, 4 Burr. 2553, Lord Mansfield says: "An information for a misdemeanor is the king's suit. The title of the cause is, 'The King against the defendant.' * * * As a subject sues by attorney, so does the king, with a little variation of form for decency." See, also, State v. White, above cited. It appears from Rex v. Wilkes that...