State v. Levine

• Decision Date: 07 October 1952
• Docket Number: Nos. 1801,1802,s. 1801
• Citation: 117 Vt. 320,91 A.2d 678
• Court: Vermont Supreme Court
• Parties: STATE v. LEVINE.

Page 678

91 A.2d 678

117 Vt. 320

STATE v. LEVINE.

Nos. 1801, 1802.

Supreme Court of Vermont.

Oct. 7, 1952.

Richard E. Davis, State's Atty., Barre, for plaintiff.

Joseph S. Wool, Louis Lisman, both of Burlington, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS, and CUSHING, JJ.

CLEARY, Justice.

This respondent was charged in separate informations as accessory before the fact of burglary and as accessory before the fact of grand larceny. He pleaded not guilty and the two cases were tried together. Trial was by jury with a verdict and judgment of guilty in both cases and they are here on the respondent's exceptions.

The exceptions to the denial of the respondent's motions for a directed verdict, to the court's charge to the jury and to the denial of the respondent's motion in arrest of judgment are all briefed on the same ground, namely, that the respondent could not be found guilty of being an accessory before the fact as charged in the informations because there are no such crimes under our law.

The respondent claims that V.S. 47, § 8607 determines the question. It provides that: 'A person who is accessory before the fact by counseling, hiring or otherwise procuring an offense to be committed may be complained of, informed against or indicted, tried, convicted and punished as if he were a principal offender and in the court and county where the principal might be prosecuted.' The respondent insists that the term 'may' as used in this statute must be read as 'shall' in order that the legislative intention to abolish the distinction between principals and accessories may be effectuated; that the statute is not permissive but mandatory; that it necessarily follows that the crime of accessory before the fact has ceased to exist and that an accessory must be proceeded against as a principal.

When words of common use are found in a statute, they are to be taken in their ordinary sense, unless a contrary intention clearly appears. Perkins v. Cummings, 66 Vt. 485, 488, 29 A. 675. Rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language. Dewey v. St. Albans Trust Co., 57 Vt. 332, 338; State v. Shaw, 73 Vt. 149, 171, 50 A. 863; State v. Central Vermont Railway Company, 81 Vt. 459, 462, 71 A. 193, 21 L.R.A.,N.S., 949; State v. Hildreth, 82 Vt. 382, 384, 74 A. 71, 24 L.R.A.,N.S., 551; In re Sargood, 86 Vt. 130, 136, 83 A. 718; In re Dexter, 93 Vt. 304, 312, 107 A. 134; Coral Gables, Inc. v. Christopher, 108 Vt. 414, 418, 189 A. 147, 109 A.L.R. 474; Lorenz v. Campbell, 110 Vt. 200, 202, 3 A.2d 548; State v. Sylvester, 112 Vt. 202, 207, 22 A.2d 505; Gould v. Parker, 114 Vt. 186, 190, 42 A.2d 416, 159 A.L.R. 622.

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, and, in ascertaining the intention of the Legislature, the history of the statute in question becomes material. Joy v. Swanton Bank & Trust Co., 111 Vt. 106, 109, 10 A.2d 216; Snyder v. Central Vermont Railway, 112 Vt. 190, 192, 193, 22 A.2d 181.

The respondent's brief states that our statute 'is derived from the English statute of 11 and 12 Victoria, Chap. 46, § 1.' The preamble of the English statute states it is for the purpose of relaxing the technical strictness of criminal proceedings, and to insure the punishment of the guilty without depriving the accused of any just means of defense. A Pennsylvania statute provides that an accessory before the fact may be indicted, tried and convicted, as if he were the principal felon. In Brandt v. Pennsylvania, 94 Pa. 290, at page 301, the Court says: 'The 44th section of our Criminal Procedure Act is a transcript of the English Statute, 11 and 12 Victoria Ch. 46, § 1. Mr. Archibald, in his Criminal Practice and Pleading (Vol. 1, p. 71), after quoting the statute, says: 'In all cases of felony, therefore, the accessory is punished in the same manner precisely as the principal felon; and he may now be indicted either as a principal--that is, he may be charged in the indictment with having actually committed the offense as principal in the first degree--or he may be indicted as for a substantive felony, or he may be indicted as accessory with the principal, at the option of the prosecutor.' Commonwealth v. Mendola, 294 Pa. 353, 144 A. 292 at page 294, calls attention to the Brandt case and says: 'The statute enables the commonwealth to disregard the distinction between a principal and an accessory before the fact.'

Nothing can be drawn from the history of V.S. 47, § 8607 which would compel the inference that the Legislature intended other than the ordinary or permissive meaning to be given to the word 'may' as used in the act. It is apparent that the object of the enactment was to permit the state to prosecute an accessory before the fact as a principal rather than to prevent prosecution of an accessory as such.

It is also significant that V.S. 47, § 8606 and § 8608, the two sections immediately preceding and immediately following § 8607 and both dealing with accessories, use the word 'shall'. This would indicate the intention of the Legislature purposely to differentiate in the use of the two words. It is only reasonable to assume that the use of the different words was intentional. Snyder v. Central Vermont Railway, 112 Vt. 190, 193, 22 A.2d 181.

The respondent cites Regina v. Manning, 2 Car & K 892; People v. Bliven, 112 N.Y. 79, 19 N.E. 638, 8 Am.St.Rep. 701; Spies v. People, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898, 3 Am.St.Rep. 320, 340, and State v. Marsh & Buzzell, 70 Vt. 288, 40 A. 836. All of these cases state that the prevailing statutes abolish or remove the distinction between principals and accessories before the fact. None of them except the New York case hold that an accessory must be proceeded against as a principal. But the code that governed there provided that an accessory before the fact 'is a principal.' Penal Code, § 29. The Illinois statute that governed the case cited from that state provided that an accessory before the fact 'shall be considered as principal'. Ill.Rev.Stat. 1951, c. 38, § 582.

In State v. Marsh & Buzzell, 70 Vt. 288, 303, 304, 40 A. 836, the respondents were charged as principals. The case holds that, under the statute, the jury might convict the respondents or either of them, as principals, even if the evidence only tended to show that they, or either of them, were accessories before the fact. At common law an accessory before the fact could not, in felonies, be tried and convicted as such upon an indictment charging him as principal but he could be in misdemeanors. There were no accessories before the fact in misdemeanors. The opinion states that the statute places such accessories, in all crimes, on the same legal standing in which they were at common law, when the crime charged was a misdemeanor; that the statute removes the distinction which existed at common law between felonies and misdemeanors and places felonies upon the basis of misdemeanors at common law. That is true if the state chooses to prosecute under the statute rather than at common law. But it does not follow that the state must prosecute under the statute rather than at common law. It seems clear to us that the word 'may' was used in the act in its ordinary meaning, that it is permissive rather than mandatory, and that the respondent's exceptions under discussion are of no avail. See Ackerman v. Kogut, 117 Vt. 40, 51, 84 A.2d 131; Snyder v. Central Vermont Railway, 112 Vt. 190, 193, 22 A.2d 181; Joy v. Swanton Bank & Trust Co., 111 Vt. 106, 109, 111, 10 A.2d 216; State v. Massey, 72 Vt. 210, 216, 47 A. 834.

During argument to the jury the respondent excepted to comment by the State's attorney on the failure of the respondent to take the witness stand. Later in the argument the following occurred:

'Mr. Davis: * * * That is why Mr. Levine isn't getting up and testifying, isn't giving the State an opportunity to cross-examine him. That is why he is the kind of guy to do something like this, he hasn't got the guts----

'Mr. Lisman: May the record show the State's Attorney is arguing that the failure of the respondent to take the stand warrants the inference that he lacks courage to do anything other than the crime with which he is charged. We except to that argument and ask for an exception.'

The respondent has briefed his last quoted exception and says that the only purpose that the State's attorney could have had in making the argument was to urge upon the jury that it draw the inference from the respondent's failure to testify that he was a person lacking in courage and that therefore he was the kind of a person who would procure another to commit his crimes for him; that, by virtue of the inference which he improperly drew, the State's attorney urged upon the jury a piece of evidence which was not in the case.

The State had alleged that the crimes were committed on April 21, 1950. The respondent had not taken the witness stand. His defense was an alibi and his evidence consisted entirely of depositions taken in Montreal and exhibits. The depositions tended to prove that the respondent was in Montreal on April 20 and left there on April 23, 1950, that while there he had been sent to a doctor by the druggist at the corner of Peel and St. Catherine Streets in Montreal. In rebuttal the State's evidence tended to prove that the drug store was not in operation on the dates in question, due to its previous destruction by fire; also, that on April 22, 1950, the respondent made a telephone call to Barre, Vermont, from Burlington,...