State v. Goyet, 253

• Decision Date: 01 May 1956
• Docket Number: No. 253,253
• Parties: STATE of Vermont v. Lionel R. GOYET.
• Court: Vermont Supreme Court

Page 862

122 A.2d 862

119 Vt. 167

STATE of Vermont v. Lionel R. GOYET.

No. 253.

Supreme Court of Vermont.

May 1, 1956.

Robert T. Stafford, Atty. Gen., for plaintiff.

Frederick G. Mehlman, St. Johnsbury, for defendant.

Before JEFFORDS, C. J., and CLEARY, ADAMS, CHASE and HULBURD, JJ.

JEFFORDS, Chief Justice.

The respondent was indicted for the crime of murder in the first degree. He filed a motion to permit his counsel to examine the transcript of the grand jury proceedings. This motion was denied by the trial court. The respondent also moved to quash and dismiss the indictment. This motion was also denied. Exceptions were allowed to the denial of each of these motions and the cause was passed to this Court before final judgment for hearing and determination of these exceptions.

We will first consider the exception to the court's denial of the motion for permission to examine the transcript of the proceedings of the grand jury. Five grounds are set forth in support of this motion. There is no need to set forth these grounds for the reasons which will appear later.

The pertinent sections of the statutes are V.S. §§ 2367 and 2369 which read as follows:

Section 2367, V.S.1947, provides:

'At the expense of the state and upon the approval of the presiding judge, a clerk may take testimony before the grand jury for the use of the state's attorney.'

Section 2369, V.S.1947, is as follows:

'The clerk shall not disclose testimony so taken by him, except to the attorney general, state's attorney and grand jury. The minutes of testimony so taken shall be the property of the state and the same or a copy thereof shall not go out of the possession of the attorney general, state's attorney or their successors, except to an attorney appointed by the court to act in the place of or to assist the state's attorney. Nothing in this section shall prevent the clerk from disclosing such evidence on an order of the supreme or county court.'

Counsel for the respondent in his brief and in oral argument concedes that the granting of a petition to examine the transcript of the proceedings of a grand jury is addressed to the discretion of this Court or to that of the county court under the last sentence in § 2369 and he makes no claim that there was an abuse of discretion in denying the motion in the present case.

It is the contention of the respondent, and the only one here relied upon, that it should not be necessary to show through evidence cause for the granting of such a motion but, for various stated reasons, he should be entitled to have it granted as a matter of right. In support of this claim he relies upon the following language appearing in State v. Brewster, 70 Vt. 341, at page 348, 40 A. 1037, at page 1039, 42 L.R.A. 444:

'* * * the practice in this state, for more than one hundred years has allowed the clerk and the state's attorney to take such minutes as they were able to take of the testimony of witnesses, for future use. * * * It may be that their duty under the law would restrain them from divulging such testimony to the public or to the accused. But on the presumption, which exists until the truth of the charge is fully established by the verdict of the traverse jury, of the innocence of the accused, why should he not have an equal opportunity with the state to know, and to prepare to meet, contradict, and explain, the testimony brought against him?'

The respondent in that case was indicted for murder. A plea in abatement to the indictment was filed which was based on the ground that the state's attorney with the consent of the court and of the grand jury took his stenographer with him into the grand jury room. A demurrer to the plea was sustained.

That the above quoted passage from the opinion was mere dictum is shown from the statement appearing 70 Vt. on page 352, 40 A. on page 1040 which reads as follows: 'In this review of the decisions of this state, and of the decisions of other courts, this court is to be understood as deciding no more than that the irregularities shown in this case, under all the circumstances set forth in the plea, are insufficient to abate the indictment.' It should be noted that the question appearing at the end of the first above quoted passage is not answered in the opinion. The answer well could be because a respondent could not be required to disclose to the State the evidence that he expected to present in his behalf.

It is clear that under the statutes above set forth and under our decisions the transcript of the proceedings of a grand jury are the property of the State for the benefit and use of and by the state's attorney and the attorney general and that leave to inspect the transcript by the respondent is not his as a matter of right but only by an order of this Court or of the county court upon application granted as a matter of discretion. State v. Truba, 88 Vt. 557, 561, 93 A. 293; Clark v. Field, 12 Vt. 485. This is also the general rule. 23 C.J.S., Criminal Law, § 956, p. 265; 14 Am.Jur. 915.

There was no error in the denial of the motion to examine the transcript in the present case.

The State contends that the motion to quash and dismiss the indictment was not timely. Since both parties attach considerable importance to the questions presented in the present case we will assume, without so deciding, that it was timely.

The statutes that apply to this motion are V.S.1947, §§ 1586 and 3489 which provide as follows:

'[Sec.] 1586. Duties of town clerks. Town clerks shall annually, between February 1 and 15, certify to the jury commissioners of their respective counties a list of names and post office addresses, which may be considered by the jury commissioners when they prepare the list of grand and petit jurors, of not less than ten per cent of the legal voters of their respective towns, who, in their opinion, are mentally, morally and physically qualified and are eligible to serve as jurors; but in no case shall a town clerk so certify more than fifty names.

'[Sec.] 3489. Jury commissioners; duties. The assistant judges of the county court and the clerk of such court shall constitute a board of jury commissioners for their respective counties. Annually, in the month of February, such board shall prepare and file in the office of the county clerk a list of names for each town in the county of persons qualified to serve as grand and petit jurors in the county court. The petit jury list shall contain the names of not less than five nor more than ten per cent of the legal voters in each town. However, not more than fifty names shall at any time be included in the annual grand or petit jury list for any town. Grand or petit jurors, for service in the county court, shall be drawn from such lists.'

The contention of the respondent is that the provisions in these statutes are mandatory and that they were not followed by the town clerks in Caledonia county as required under § 1586 nor by the jury commissioners of that county under § 3489.

We first consider the provisions of § 1586 which require town clerks to certify to the jury commissioners a list of names which may be considered by the jury commissioners * * *. In determining whether the word 'may' when used in a public statute is to be construed as imposing an absolute duty or merely a discretionary power, the general rule of statutory construction should be applied that the true intent and purpose of the Legislature must be ascertained and given effect. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions. State v. Levine, 117 Vt. 320, 323, 91 A.2d 678 and cases cited. We can think of no reason, and none which appeals to us has been advanced by the respondent, why the word 'may' should not be given its ordinary meaning of permission or discretion. As applied to the present case it seems reasonable to believe that the Legislature only intended that the town clerks prepare a list of names of persons qualified to serve as jurors as an aid to the jury commissioners in preparing the list of jurors under § 3489. If a mandatory construction is given to 'may' it is apparent the result would deprive the commissioners of all right to exercise their judgment as to the qualification of persons to serve as jurors and they would be bound to take the persons appearing on the lists certified to them by the town clerks even though it was known to one or all of the commissioners that some of the persons so certified were not qualified to serve. If such a construction were given it is clear that an absurd consequence would follow, and this must always be avoided if possible. In re Swanton Market Area, 112 Vt. 285, 292, 23 A.2d 536 and cases cited.

From the foregoing it follows and we so hold that jury commissioners are not required to confine themselves to the use of the list of jurors certified to them by town clerks under the provisions of § 1586 in compiling their list of grand and petit jurors under the provisions of § 3489.

Under this latter section the only requirement in respect to grand jurors is that the jury commissioners shall not include in their grand jury list more than fifty names from any town in their county. From a tabulation appearing in the printed case which was stipulated by the parties to be an accurate statement of the number of persons from each town in the county appearing on the jury list of the commissioners it is seen that this statutory requirement was violated as to only the town of St. Johnsbury. For that town 54 names were listed. The question is then whether the failure in this instance to strictly comply with this statutory requirement makes the indictment void and the denying of the motion to quash and dismiss erroneous.

In State v. Pilver, 91 Vt. 310, 100 A. 674 a statutory requirement to the effect that jurors in criminal cases in municipal courts shall be drawn from a list of jurymen from...