State v. Frotten.

• Decision Date: 07 May 1946
• Docket Number: No. 133.,133.
• Citation: 46 A.2d 921
• Parties: STATE v. FROTTEN.
• Court: Vermont Supreme Court

46 A.2d 921

STATE

v.FROTTEN.

No. 133.

Supreme Court of Vermont.

May 7, 1946.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Bennington County Court; Adams, Presiding Judge.

Harold Frotten was convicted of murder in the first degree, and he brings exceptions.

Indictment abated and judgment reversed.

Alban J. Parker, Atty. Gen., and William Travers Jerome, State's Atty., of Bennington, for plaintiff.

Collins M. Graves, of Bennington, for defendant.

Before MOULTON, C. J., SHERBURNE and STURTEVANT, JJ., and CLEARY and HUGHES, Superior Judges.

MOULTON, Chief Justice.

The respondent was indicted for the crime of murder in the first degree, and was tried and convicted. He admitted the commission of the homicide, but pleaded self defense and insanity. Before his arraignment and plea he moved to quash the indictment. The motion was denied, subject to his exception. This is the first question for our consideration.

The motion was based upon matters not appearing upon the face of the record and was therefore an inappropriate procedure. A motion to quash does not allow joinder of issues of fact depending upon the testimony of witnesses, State v. Ward, 60 Vt. 142, 153, 14 A. 187; State v. Intoxicating Liquor, 44 Vt. 208, 216; Town of Landgrove v. Town of Plymouth, 52 Vt. 503, 510; and see State v. Cocklin, 109 Vt. 207, 215, 194 A. 378; State v. Colby, 98 Vt. 96, 97, 126 A. 510. The proper method of raising such issues is by a plea in abatement. State v. Ward, supra, 60 Vt. at page 156, 14 A. 378. But here a trial of fact upon the motion was had without objection. (See State v. Intoxicating Liquor, supra), and where a pleading entitled a motion to quash has the requisites of a plea in abatement, in a case where such a plea is the proper procedure, it will be treated as such here. State v. Young, 82 W.Va. 714, 97 S.E. 134. It is apparent, from the briefs of the respondent and the State, that no question as to the nature of the proceeding was raised below.

It appears that the venire, by the authority of which the sheriff summoned the grand jury, was not signed by the county clerk. The fact was not alleged in the respondent's written motion, but the transcript shows that in the course of the hearing thereon the point was developed by the testimony of the clerk and the production of the venire as an exhibit, and was thus clearly brought to the attention of the trial court. We treat it therefore as an issue raised below. Moreover, as we shall see, it is a question touching the jurisdiction of the grand jury to find the indictment, and consequently the jurisdiction of the trial court to proceed with the trial thereon, and so, under the circumstances, might be presented in this Court for the first time. Aguirre v. Aja, 113 Vt. 123, 125, 30 A.2d 88, and cas. cit. P.L. 1545, as amended by No. 31, § 3, Acts of 1941, is as follows: ‘Eighteen judicious persons within each county may, in the discretion of the judges of the county court, be summoned to appear at any stated or special term of such court, at such time during such term as the judges direct, to serve as grand jurors of such county, and the clerk of such court shall issue a venire accordingly.’ P.L. 1550, after directing that the sheriff or his deputy shall, at the office and in the presence of the clerk, draw the names of the grand jurors required to be summoned from the respective towns, provides that ‘the county clerk shall issue a venire commanding such officer to summon the persons so drawn.’

A venire is the common law process of venire facias juratores which is ‘a writ directed to the sheriff commanding him to cause to come from the body of the county, before the court from which it issued, on some day certain and therein specified, a certain number of qualified citizens to act as jurors in the said court.’ 2 Bouvier's Law Dictionary, Rawles' 3rd Revision, 3390. At common law the precept was either in the name of the King or of two or more justices of the peace. 2 Hale, Pleas of the Crown, 154; Commonwealth v. Burton, 4 Leigh, Va., 645, 26 Am.Dec. 337, 338. The only essential difference between the writ as it was in the time of Sir Matthew Hale (1609-1676) and as it now exists in this jurisdiction is in regard to the issuing authority. Under the statutes above quoted this duty is mandatory upon the county clerk, who is the clerk of the county court (P.L. 1394), when the judges of that court have decided in their discretion that a grand jury shall be summoned. In other respects the common law still prevails, and at common law a venire is necessary to authorize the sheriff to summon the grand jurors. People v. McKay, 18 Johns, N.Y., 212, 216, United States v. Antz, C.C., 16 F. 119, 124; State v. Lightbody, 38 Me. 200, 201. A grand jury summoned without process cannot return a valid indictment. Nicholls v. State, 5 N.J.L. 539, 543; State v. Rickey, 9 N.J.L. 293, 299; Joyce on Indictments, 2nd Ed., para. 76, p. 91. In State v. Flemming, 66 Me. 142, 22 Am.Rep. 552, 554, a venire issued without the seal of the Court, attached to it was said to render an indictment illegal and void, and it was held that: ‘Every indictment, to be valid, must be found by a grand jury legally selected, and competent to act at the time the indictment is found.’

In this State a seal is not required for the validity of process, but all writs must be signed by the authority designated by statute. Without such signature a writ is void and confers no jurisdiction, Ramsey v. McDonald, 108 Vt. 180, 181, 184 A. 691 and cas. cit.; Howe v. Lisbon Savings Bank, 111 Vt. 201, 209, 14 A.2d 3 et seq. where the decisions upon this point are reviewed. There is no question of waiver here.

It cannot be held that the respondent should have made his objection, before or at the time of organization of the grand jury, or be considered to have waived that objection, when he had no right to be heard by that body in the proceedings taken against him. State v. Ward, 60 Vt. 142, 155, 14 A. 187. Besides this, there can be no waiver when, because of a fundamental defect the grand jury is without jurisdiction to act. People v. Gray, 261 Ill. 140, 103 N.E. 552, 49 L.R.A.,N.S., 1215, 1219.

A venire is issued by the clerk only when it is signed by him. See Blain v. Blain, 45 Vt. 538, 543. The omission is something more than a technical irregularity, such as is held in State v. Brewster, 70 Vt. 341, 351, 40 A. 1037, 42 L.R.A. 444, and cas. cit. not to affect the validity of an indictment. The principle governing writs in civil causes applies here. Without the signature of the clerk the venire was illegal and void; the grand jury summoned in accordance with it was without jurisdiction to act, the indictment against the respondent is invalid, and should have been abated.

The State, in its brief, asks that, if it should be held that the lack of the signature is a material defect, we will order the Clerk to sign the venire nunc pro tunc, in order to clear the record. But void process cannot be amended, and this is what we should be attempting to do if we were to comply with the request. Ramsey v. McDonald, supra; State v. Flemming, supra.

A further ground of objection to the indictment is that the venire commanded the sheriff to summon the grand jurors ‘to appear before the Hon. County Court to be holden at Manchester within and for the county of Bennington, 7th day of June A.D.1945.’ The fault found is that the summons did not designate a regular or special term of court. The June Term of Bennington County Court was convened, according to law, upon that day. If there was irregularity in the respect claimed, which we do not decide, it was only technical in nature, according to the rule in State v. Brewster, 70 Vt. 341, 351, 40 A. 1037, 42 L.R.A. 444; and did not of itself render the proceedings of the grand jury of no effect.

It also urged that the return of the sheriff shows that he summoned the grand jury on June 22, 1945. This was clearly an inadvertence, for the grand jury attended on the 7th. The Court had the discretionary power to permit an amendment of the return to show the true time of the summons. Bent v. Bent, 43 Vt. 42, 47; and see Desany v. Thorp. 70 Vt. 31, 41, 39 A. 309. The mistake did not affect the validity of the indictment.

Still another complaint is that the venire describes those to be summoned as ‘persons nominated by the authority of the towns in said county * * * and returned to the County Clerk of said County to serve as Grand Jurors.’ The printed form upon which the venire was made out was appropriate for use under the law as it was when P.S. 3515 was in force and the grand jurors were nominated in each town by the board of civil authority of that town. But No. 76 of the Acts of 1917, now P.L. 3412, makes the preparation of a list of the names of persons qualified to serve as grand and petit jurors from each town in the county the duty of a board of jury commissioners, consisting of the assistant judges of the county court and the county clerk. In view of what has been said concerning the invalidity of the indictment for another reason, all that is necessary to say about this irregularity is that it is one that is not at all likely to occur in the future, and so need be given no further attention.

The respondent claims that the indictment is void because of the circumstances under which it was found and returned by the grand jury. The undisputed facts, shown by the transcript, are these; On June 7, 1945, the grand jury indicted the respondent, and were then excused by the court, subject to call. The respondent was arraigned and pleaded not guilty. Thereafter, and before the day set for the trial, the presiding judge examined the indictment and discovered the omission of certain words therein which, as he considered, rendered it defective as charging murder in the first degree. The grand jurors were recalled, and assembled on June 18. The presiding judge inquired of them whether they...