State v. Harold Frotten

• Citation: 46 A.2d 921,114 Vt. 410
• Parties: STATE v. HAROLD FROTTEN
• Decision Date: 07 May 1946
• Court: Vermont Supreme Court

46 A.2d 921

114 Vt. 410

STATE v. HAROLD FROTTEN

Supreme Court of Vermont

May 7, 1946

February Term, 1946.

Criminal Procedure.

1. A motion to quash does not allow joinder of issues of fact depending upon the testimony of witnesses; such issues should be raised by plea in abatement.

2. 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, and trial has been had thereon without objection, it will be treated on appeal as a plea in abatement.

3. A question affecting the jurisdiction of the grand jury to find an indictment in a homicide case may be considered on appeal although not raised in the lower court.

4. The common law rule that a venire is necessary to authorize the sheriff to summon the grand jurors prevails in this state.

5. A grand jury summoned without process cannot return a valid indictment.

6. All writs must be signed by the authority designated by statute without such signature a writ is void and confers no jurisdiction.

7. Where, because of a fundamental defect, a grand jury is without jurisdiction to act, there can be no waiver of irregularities.

8. A venire is issued by the clerk only when it is signed by him without such signature the venire is illegal and void.

9. Void process cannot be amended.

10. The proceedings of a grand jury are not rendered void by irregularities which are only technical in nature.

11. A trial court may resubmit to the grand jury an indictment which is defective or imperfect, and the grand jury may correct it without recalling or reexamining witnesses.

12. It is improper for the court to prepare an indictment and present it to the grand jury; that duty by statute is placed upon the state's attorney.

13. A respondent tried under an indictment later held to be void has not thereby been in jeopardy.

14. A trial and judgment upon a fundamentally defective indictment is not a ground upon which to sustain a plea in bar based upon former jeopardy.

15. The admissibility of photographs rests in the discretion of the trial court, not to be disturbed in the absence of a showing of abuse of discretion.

16. It is error to admit the opinion of an expert based in whole or in part on facts the existence of which is not within the tendency of the evidence.

17. Voluntary intoxication does not excuse or palliate crime, or operate to reduce the degree of homicide where the perpetrator was previously in the requisite condition of mental responsibility.

INDICTMENT for murder in the first degree. Before arraignment and plea the respondent moved to quash the indictment. Trial by jury, Bennington County Court, June Term, 1945, Adams, J., presiding. Judgment of guilty. Indictment abated and judgment reversed.

The indictment is abated and the judgment reversed.

Collins M. Graves for the respondent.

William Travers Jerome, State's Attorney, and Alban J. Parker, Attorney General, for the State.

Present: MOULTON, C. J., SHERBURNE and STURTEVANT, JJ., CLEARY and HUGHES, Supr. JJ.

OPINION

MOULTON

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 Liquors, 44 Vt. 208, 216; Landgrove v. 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, at p. 156. 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 645, 26 A. D. 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. M'Kay, 18 Johns. 212, 216; United States v. Antz, 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 AR 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 LRANS 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. Fleming, 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...