State v. Gosselin

• Decision Date: 02 May 1939
• Docket Number: No. 523.,523.
• Citation: 6 A.2d 14
• Parties: STATE v. GOSSELIN.
• Court: Vermont Supreme Court

6 A.2d 14

STATE

v. GOSSELIN.

No. 523.

Supreme Court of Vermont. Franklin.

May 2, 1939.

Exceptions from Franklin Municipal Court; P. L. Shangraw, Judge.

Hormidas Gosselin was found guilty on count charging failing to stop after motor vehicle accident and not guilty on count charging careless and negligent operation of motor vehicle causing death. To granting of motion to set aside verdict and arrest judgment as to first count and to entry of judgment on the second count, State excepted. On State's exceptions.

Reversed and remanded in part and affirmed in part.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

F. S. Bedard, Jr., State's Atty., of St. Albans, for the State.

P. C. Warner, of St. Albans, for respondent.

JEFFORDS, Justice.

The complaint in this case contained two counts. The first attempted to charge a violation of sec. 5156 of the Public Laws and the second charged careless and negligent operation of a motor vehicle causing death. There was a trial by jury in the Franklin municipal court and a verdict of guilty on the first count and not guilty on the second. A motion of the respondent to set aside the verdict and arrest judgment as to the first count was granted. Judgment was entered on the verdict on the second count. The State excepted to the granting of the motion as to the first count and to the entry of judgment on the second. The case comes here on exceptions by the State under P.L. sec. 2425.

As before noted, the first count attempted to charge a violation of P.L. sec. 5156, which reads as follows: "The operator of a motor vehicle who has caused or is involved in an accident resulting in injury to any person or property, other than the vehicle then under his control or its occupants, shall immediately stop and render such assistance as may be reasonably necessary, and shall give his name, residence, license number and the name of the owner of such motor vehicle to the party whose person or property is injured."

This count as far as material was as follows: "That Hormidas J. Gosselin * * * was then and there involved in an accident and did fail to immediately stop and render such assistance as was reasonably necessary and did fail to give his name, residence, license number and name of the owner of the motor vehicle he was then and there operating to the person with whom his said car was involved in an accident, but on the contrary did not stop but did continue on in the operation of said motor vehicle," etc.

After verdict and before judgment the respondent filed his motion as to count 1 before mentioned. Although this motion was not brought into the printed case as it should have been, State v. Wersebe, 107 Vt. 529, 181 A. 299, it is referred to in the bill of exceptions and the docket entries certified to the clerk of the general term and to which we may refer, Brown v. Vt. Mutual Fire Ins. Co., 92 Vt. 272, 274, 102 A. 1042, show that an exception was granted the State to the granting of said motion by the court and also to the entry of judgment on count 2.

There were several grounds to the motion made by the respondent, but we need notice only those briefed by him which were to the effect that the complaint failed to allege an offense under any statute of the State or under the common law, there being no allegation in the complaint that in the accident in which it was alleged the respondent was involved there was any damage to the property of another person or any injury to any person other than an occupant of the automobile which he was operating, or that the respondent injured any property other than the vehicle under his control, or what property or whose property he injured.

A complaint that fails to allege every fact necessary to constitute the offense charged, though that be statutory, is defective and a proper way to reach the defect is by motion in arrest of judgment. State v. Cocklin, 109 Vt. 207, 194 S.E. 378; State v. Wersebe, supra; State v. Caplan, 100 Vt. 140, 135 A. 705; State v. Ryea, 97 Vt. 219, 122 A. 422; State v. Palmer, 94 Vt. 278, 110 A. 436.

Such complaint must set forth the charges with such particularity as will reasonably indicate the offense of which the respondent is accused, and enable him intelligently to prepare his defense, and successfully to plead the judgment if subsequently prosecuted for the same offense. State v. Wersebe, supra, and cases cited therein.

This right is guaranteed by the constitution. State v. Ryea, supra.

It is apparent on the face of the complaint that count number 1 is defective. There is no allegation contained therein that the accident resulted in injury to any person or property, other than the vehicle under the control of the respondent or its occupants. This fact or facts were necessary to constitute the offense attempted to be charged. Without this allegation no offense under the law of this State was charged, even argumentatively.

Nor was this defect cured by the verdict because it cannot be implied or inferred from the finding that injury as defined by the statute resulted from the accident. State v. Ryea, supra; State v. Palmer, supra. The Legislature so indicated by its wording of the statute.

Where no ground of complaint known to the law is set out, the complaint, information or indictment will not be aided by verdict. State v. Ryea, supra; State v. Hodgson, 66 Vt. 134, 144, 28 A. 1089.

The other claimed errors briefed by the State relate to the admission or rejection of evidence.

Exceptions were taken to the admission of evidence from two witnesses as to what the respondent said about reporting the accident soon after it happened.

If there were error in the reception of this evidence, which we do not now decide, it was harmless as the record is filled with similar evidence received without objection from other witnesses who so far as appears were of equal credibility. State v. Orlandi, 106 Vt. 165, 173, 170 A. 908. Moreover, this testimony bore only on the first count on which the jury returned a verdict of guilty so for this reason the error, if any, was harmless.

The last claim of error has to do with the court's curtailment of the cross examination of a witness by the State's attorney. Here again the line of questioning had to do only with the first count and in addition no abuse of discretion on the part of the court was or could be rightly claimed or shown.

Sec. 2425 of the Public Laws provides that this Court shall hear and determine the questions upon the exceptions of the State and render final judgment thereon, or remand the cause for further trial or other...