State v. Harre, 508.
| Citation | 195 A. 244 |
| Decision Date | 02 November 1937 |
| Docket Number | No. 508.,508. |
| Court | United States State Supreme Court of Vermont |
| Parties | STATE v. HARRE. |
Appeal from Franklin Municipal Court; P. L. Shangraw, Judge.
Robert Harre was convicted in the Franklin Municipal Court of the unlawful sale of intoxicating liquor, his motion in arrest of judgment was overruled, judgment was entered and sentence imposed, and accused appeals.
Judgment reversed, motion granted, and accused discharged.
Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.
W. K. Sullivan, State's Atty., of St. Albans, for the State. P. C. Warner, of St. Albans, for respondent.
This is a prosecution in the Franklin municipal court for the unlawful sale of intoxicating liquor. The complaint was presented to the court January 8, 1937, by John H. Webster, the then state's attorney for Franklin county. A trial was had thereon by jury January 27, 1937, which resulted in a disagreement. Webster's term of office expired January 31, 1937, and the day following William K. Sullivan became state's attorney for said county. On February 8, 1937, he amended, or attempted to amend, the complaint by filing 33 additional counts, and later (when did not appear) entered a nolle prosequi as to those in the original complaint. Another trial by jury was had February 11, 1937. At the close of the state's evidence a nolle prosequi was entered as to seven of the new counts, a verdict was directed for the respondent on six others, he was found guilty on one (No. 20), and acquitted on nineteen.
He seasonably filed a motion in arrest of judgment on various grounds. This was overruled, judgment was entered, and sentence imposed.
It appears from the original complaint, and the amendment which are referred to in the exceptions, that the new counts art attached to the original complaint following the words, "Comes John H. Webster State's Attorney of the county aforesaid, in his proper person, and on his oath of office, makes complaint that Robert Harre of Richford in the county of Franklin, at Richford," in the first count thereof, as a continuation of such count; and that each succeeding count begins, "Comes the State's Attorney in his proper person," etc., without averring, directly or by reference to the original complaint or the preceding count, the county he represents. Following the new counts are the remaining parts of the original complaint, including the signature of Webster, as state's attorney for Franklin county, and none other. No one, in fact, signed the amendment, and it does not bear a minute of the day, month, or year when it was presented to the court, although the exceptions state that it was "filed" February 8, 1937.
No question is made but that Sullivan had authority to amend the complaint of his predecessor in matters of form or substance. State v. Barrell, 75 Vt. 202, 54 A. 183, 98 Am.St.Rep. 813; State v. Meacham, 67 Vt. 707, 32 A. 494. The trouble concerns the way in which it was done or attempted.
The ground briefed in support of respondent's motion is that the court lacked jurisdiction of the count upon which he was convicted, because the day, month, and year when the amendment was presented to the court was not minuted thereon as required by P.L. 2457, and because such amendment was not signed by a prosecuting officer "having jurisdiction of the offense," which we assume to mean one who had authority to sign the complaint, or by any one.
Assuming that the failure of the court to minute on the amendment the day, month, and year when the same was presented was a fatal defect if seasonably taken advantage of, State v. Wakefield, 60 Vt. 618, 621, 15 A. 181; Town of Brighton v. Kelsey, 77 Vt. 258, 59 A. 833, and other cases, it was waived in the instant case by first submitting to a trial on the merits, State v. Butler, 17 Vt. 145; State v. Perkins, 58 Vt. 722, 724, 5 A. 894; Taft v. Taft, 82 Vt. 64, 71 A. 831; Frisbie v. United States, 157 U.S. 160, 15 S.Ct. 586, 39 L.Ed. 657; McFall v. State, 73 Ark. 327, 84 S.W. 479. The same would be true of the failure of Sullivan to sign the amendment, Abbott Bros. Co. v. United States (C.C.A.) 242 F. 751; State v. Green, 229 Mo. 642, 645, 129 S.W. 700; State v. Van Wormer, 103 Kan. 309, 173 P. 1076, 180 P. 450; De Berry v. State, 99 Tenn. 207, 42 S.W. 31; Lambert v. People, 29 Mich. 71; Simpson v. State, 16 Okl.Cr. 533, 185 P. 116; State v. Shippey, 10 Minn. 223 (Gil. 178), 88 Am.Dec. 70, were it not for article 11 of our Declaration of Rights. We held in State v. Donaldson, 101 Vt. 483, 144 A. 684, that warrants without oath or...
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