State v. Canatella

• Decision Date: 04 April 1950
• Citation: State v. Canatella, 96 N.H. 202, 72 A.2d 507 (N.H. 1950)
• Parties: STATE v. CANATELLA. STATE v. EDWARDS.
• Court: New Hampshire Supreme Court

Page 507

72 A.2d 507

96 N.H. 202

STATE v. CANATELLA.

STATE v. EDWARDS.

Supreme Court of New Hampshire.

April 4, 1950.

William L. Phinney, Attorney General, and Wyman P. Boynton, County Solicitor, Portsmouth, for the State.

Arthur J. Reinhart, Portsmouth, for respondent Canatella.

Charles J. Griffin, Portsmouth, for respondent Edwards.

DUNCAN, Justice.

Each respondent was charged with the taking of 'Eighteen ($18.00) Dollars of the lawful currency and money of the United States of America of the value of Eighteen ($18.00) Dollars of the goods and chattels' of the complaining witness. While exceptions to the denial of the motions to quash for insufficient description of the offense charged have not been argued by the respondents, their brief indicates the basis of the exceptions to be an alleged innsufficiency in the description of the money taken. Under the early cases of Hamblett v. State, 18 N.H. 384, and Lord v. State, 20 N.H. 404, 51 Am.Dec. 231, a somewhat particular description of money taken was held to be required in indictments for larceny, although in the former case a particular description of each bill or note was said to be unnecessary. See also State v. Mahanna, 48 N.H. 377. The reasons for the required description of articles alleged to have been taken were stated in State v. Fogg, 92 N.H. 308, 309, 30 A.2d 491, 492, and need not be repeated here. It was there held that where the total value of the property is alleged, the 'value of each article is immaterial, and need not be stated.' The practical difficulty of furnishing a description of small bills taken was pointed out in Commonwealth v. Grimes, 10 Gray, Mass., 470, 71 Am.Dec. 666. Cf. A.L.I.Code Crim.Proc., 168. No better description is required than the circumstances of the particular case will admit (32 Am.Jur. 1022), and necessary omissions may be cured by recital that a more particular description is to the grand jurors unknown. State v. Burke, 54 N.H. 92, 94, 95; 36 L.R.A.,N.S., 943. While the better practice calls for such a recital, its omission in this case is a formal rather than substantive defect, and not fatal. R.L. c. 427, § 12. When the offense charged is larceny the degree of the offense is dependent upon the value of the goods taken. R.L. c. 452, §§ 3-5; Laws 1949, c. 140. Particular allegations of value are less material where robbery is charged, for the gist of the offense is force and intimidation. R.L. c. 455, § 18; State v. Gorham, 55 N.H. 152, 166; People v. Nolan, 250 Ill. 351, 95 N.E. 140, 34 L.R.A.,N.S., 301, Ann.Cas.1912B, 401. The indictments sufficiently met the requirement of a full and plain description of the offense as required by Article 15th of the Bill of Rights, State v. Fogg, supra.

The respondents have directed their principal argument to the issue presented by their motions to quash because of the presence of the police officer in the grand jury room during the testimony of the complaining witness. The conduct of grand jury proceedings in this jurisdiction is little regulated by either Constitution or statute. Article 15th of the Bill of Rights makes no express reference to such proceedings but guarantees that no subject shall be 'arrested, imprisoned * * * or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.' Whatever the meaning of the concluding words of this article (Mayo v. Wilson, 1 N.H. 53, 55; Hutchins v. Edson, 1 N.H. 139, 140; Cooley, Const.Lim. (7th Ed.) p. 500 et seq.), it will not be questioned that the common law right to 'a lawful accusation' by a grand jury is among the rights safeguarded by the Bill of Rights. See State v. Gerry, 68 N.H. 495, 497, 38 A. 272, 38 L.R.A. 228. By statute, grand jurors are required to be sworn to secrecy. R.L. c. 427, § 4. This requirement does not extend to witnesses before the jury. Ib., § 5. The reasons assigned for the requirement of secrecy indicate that it is imposed primarily for the protection of persons other than an accused who is indicted. Wig.Ev., § 2360; Orfield Crim.Proc., 167. See State v. Wood, 53 N.H. 484, 493.

In the interest of secrecy as well as orderly and uninfluenced proceedings, the practice arose of excluding unauthorized persons from both the investigations and the deliberations of the jury. Modern applications of the practice have somewhat modified its earlier rigidity, but the test of authorized presence continues to depend upon the reasonable necessities of arriving at the truth. 'One purpose of the grand jury in making its investigations and accusations is to ascertain truth. Where that end in its essence cannot be achieved without the presence of more than one person, the rule that only one person may be present is not applicable. * * * Such instances, however, rest upon inherent necessity and not upon convenience.' In re Lebowitch, Petitioner, 235 Mass. 357, 362, 126 N.E. 831, 832. Specific instances cited by the Court in that case include the presence of an interpreter, a guard for a prisoner who testifies, and an attendant for a sick or disabled witness. Similarly it has been held that the presence of a stenographer does not violate the rule. State v. Brewster, 70 Vt. 341, 40 A. 1037, 42 L.R.A. 444; State v. Kemp, 126 Conn. 60, 9 A.2d 63. See also, 4 A.L.R.2d 392, passim.

In the case before us the reason for the presence of the police officer during the testimony of the complaining witness before the grand jury does not appear, except as we learn that he was himself a witness before the jury. Since his presence is not shown to have been necessary beyond the time required for his own testimony, it must be deemed to have been to that extent unauthorized. Yet the proceedings were not necessarily for that reason invalidated. They were not thereby converted into a public trial entitling the respondents to be heard and represented. See 38 C.J.S.Grand Juries, § 39, p. 1038. There is no indication that their course was affected in any way adverse to the respondents by the officer's presence while not testifying. See People v. Gould, 345 Ill. 288, 322-325, 178 N.E. 133. In State v. Challis, 75 N.H. 492, 76 A. 643, a lawyer for the complaining witness expressed his views of the law while testifying before a grand jury. In overruling an exception to the denial of a motion to quash, it...