State v. Hormidas Gosselin
| Decision Date | 02 May 1939 |
| Citation | 6 A.2d 14,110 Vt. 361 |
| Parties | STATE v. HORMIDAS GOSSELIN |
| Court | Vermont Supreme Court |
February Term, 1939.
1. Bringing Motion in Arrest of Judgment into Printed Case---2. Reference to Docket Entries---3. Exceptions Held before Supreme Court Though Not in Printed Case---4. When Criminal Complaint Is Defective and Manner of Reaching Defect---5. Essentials of Valid Complaint---6. Complaint for Violation of P. L. 5156, Leaving Scene of Accident, Held Defective---7. Complaint, etc., Not Aided by Verdict---8. Admission of Evidence Held Harmless Where Similar Evidence Received without Objection---9. Admission of Evidence and Curtailment of Cross Examination Held Harmless to State as Bearing on Guilty Count Only---10. Remand under P. L. 2425 to Permit Amendment of Defective Count and New Trial---11. Granting of Motion in Arrest Held Not to Operate as Acquittal---12. Respondent Not in Jeopardy on Defective Count---13. Motion in Arrest of Judgment as Waiver of Right to Claim Former Jeopardy---14. Prosecution of Respondent after Count Declared Defective and Judgment Arrested---15. Judgment Affirmed as to One Count and Cause Remanded as to the Other.
1. Where State sought review of action of trial court in granting respondent's motion to set aside verdict and arrest judgment in criminal prosecution, motion should have been brought into printed case.
2. Supreme Court could refer to docket entries certified to clerk of the general term in aid of printed case.
3. Exceptions taken by State in criminal prosecution to granting of respondent's motion to set aside verdict and arrest judgment as to one count and to entry of judgment on not guilty verdict on second count were for consideration in Supreme Court where motion was referred to in bill of exceptions, though it was not brought into printed case, and where docket entries certified to clerk of the general term showed that such exceptions were granted.
4. Complaint that fails to allege every fact necessary to constitute offense charged, though that be statutory, is defective, and a proper way to reach the defect is by motion in arrest of judgment.
5. Complaint charging criminal offense is required by Constitution of Vermont to set forth charges with such particularity as will reasonably indicate offense of which respondent is accused, and enable him intelligently to prepare his defense and successfully to plead the judgment if subsequently prosecuted for same offense.
6. Count in criminal complaint attempting to charge offense under P. L. 5156, penalizing failure to stop and furnish assistance and information after motor vehicle accident, was defective and charged no offense under law of this State where there was no allegation that accident resulted in injury to any person or property other than vehicle under control of respondent or its occupants, and defect was not cured by verdict of guilty, since it could not be implied or inferred from finding that injury as defined by the statute resulted from the accident.
7. Where no ground of complaint known to the law is set out complaint, information or indictment will not be aided by verdict.
8. Admission of evidence over objection of State in criminal prosecution was harmless, if error, where similar evidence was received without objection from other witnesses apparently of equal credibility.
9. Admission of evidence in criminal prosecution over objection of State, and curtailment of cross-examination of witness by State's attorney, were harmless, if error, where such evidence and cross-examination had to do only with count on which jury returned verdict of guilty.
10. Where count in criminal complaint was defective so that trial court properly granted respondent's motion in arrest of judgment, it could be cured by amendment and Supreme Court had right under P. L. 2425 to remand cause so that amendment might be allowed and a new trial had.
11. Where evidence introduced in criminal prosecution showed elements of offense attempted to be charged in defective count, allowance of motion in arrest of judgment did not operate as acquittal but only placed respondent in same situation in which he was before prosecution was begun.
12. Respondent in criminal prosecution had not been put in jeopardy on count so defective in substance that it failed to state public offense known to laws of this State and required granting of respondent's motion in arrest of judgment when jury brought in verdict of guilty thereon.
13. In criminal prosecution, where jury found respondent guilty on one count in complaint and his motion in arrest of judgment was granted on ground that such count was defective, he waived by his motion any right to claim former jeopardy as result of trial on this count.
14. Where count in criminal complaint attempting to charge respondent under P. L. 5156 with failing to stop and furnish assistance and information after motor vehicle accident had been declared defective and respondent's motion in arrest of judgment had been granted on ground of defect, he could still be prosecuted for violation of this statute, on same complaint properly amended or on new complaint or information.
15. Where one count was good and one bad in criminal complaint which charged or attempted to charge two separate and distinct crimes, dependent upon different proof for their substantiation, and verdicts were special, the valid could be separated from the defective and Supreme Court could affirm judgment on verdict of not guilty on the good count and remand the cause as to the other.
COMPLAINT in two counts charging violation of P. L. 5156 requiring the operator of a motor vehicle involved in an accident to stop and furnish assistance and information, and careless and negligent driving resulting in death. Plea, not guilty. Trial by jury in Franklin municipal court, P. L Shangraw, Municipal Judge, presiding. Verdict of guilty on the first count and not guilty on the second. The respondent's motion to set aside the verdict and arrest judgment on the first count was granted. Judgment on the verdict on the second count. The State excepted. The opinion states the case.
As to count number 1, the judgment granting the motion in arrest is reversed pro forma, the motion is denied and cause remanded, with leave to apply on or before July 1, 1939, to amend the complaint, failing which let the judgment on the verdict be arrested. Judgment as to count number 2 is affirmed.
F. S. Bedard, Jr., State's Attorney, (W. K. Sullivan on the brief) for the State.
P. C. Warner for the respondent.
Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
The complaint in this case contained two counts. The first attempted to charge a violation of § 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. 2425.
As before noted, the first count attempted to charge a violation of P. L. 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. Vermont 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...
To continue reading
Request your trial