State v. Lockwood

• Decision Date: 27 April 1886
• Citation: 58 Vt. 378,3 A. 539
• Parties: STATE v. LOCKWOOD.
• Court: Vermont Supreme Court

3 A. 539

58 Vt. 378

STATE

v. LOCKWOOD.¹

SUPREME COURT OF VERMONT.

Filed April 27, 1886.

Exceptions from county court, Windsor county.

Indictment for larceny. Plea, not guilty. Windsor county court. December term, 1885. Verdict, guilty on the first count, and guilty of petty larceny on the second count. Before trial the respondent filed a motion to quash. State's attorney entered a nolle prosequi as to the third and fourth counts, and, by leave of the court, amended the first count by changing the word "statue" to "statute." To entering the nolle prosequi, and to the amendment, the respondent excepted. After verdict the respondent moved in arrest of judgment. Motion overruled, to which the respondent excepted. The other facts appear in the opinion.

J. J. Wilson, for the State.

The motion to quash raises the question whether counts for apparently distinct felonies can be joined in one indictment. To so join has been the long-established practice. 1 Bish. (3d Ed.) § 450, and notes. No joining of felonies is illegal. 1 Bish. §§ 424, 425, 449, 453-455. The prosecuting attorney can enter a nolle prosequi at any time before judgment. 1 Bish. §456; State v. Hoe, 12 Vt. 93. The amendment of the word "statute" was a matter of form, and allowable by statute. The statute relative to examining witnesses separate and apart does not apply to the court, or to any of the officers thereof. State v. Hopkins, 50 Vt. 316. The questions to Morse were unobjectional. The answers did not injure the respondent.

Davis & Enright, for respondent.

The motion to quash should have been sustained. The first, second, and fourth counts were for grand larceny, a felony; while the third count was for petty larceny, a misdemeanor. The punishments were different, and such misjoinder vitiated the whole indictment, and the defect could not be cured by entering the nolle prosequi as to the third and fourth counts. The second count was fatally defective. It charged no offense,—"did steal." This defect was pointed out in the motion to quash, was not amended, and could not be because it was a matter of substance, as defined in State v. Amadon, 2 Atl. Rep. 154, being a fact necessary to be proved to make the act complained of a crime, and judgment should have been arrested on that count. The second count was not in the English language. State v. Jericho, 40 Vt. 121; Clark v. Stoughton, 18 Vt. 50. There can be no such joinder of felonies as to include separate transactions in one indictment. The reason of this rule is that the joinder would confound the prisoner in his defense, or prejudice him in his challenge of the jury; for he might object to a juryman's trying one of the offenses, though he might have no reason to do so in the others. State v. Fowler, 8 Fost. 191; Territory v. Duffield, 1 Ariz. 58; Rex v. Robinson, 1 Moody, 413; State v. Smith, 8 Blackf. 489; Hilderbrand v. State, 5 Mo. 548; Norvell v. State, 50 Ala. 174; Davis v. State, 57 Ga. 66; U. S. v. Scott, 4 Biss. 29.

VEAZEY, J. In State v. Smalley, 50 Vt. 736, this court decided that it was no cause of demurrer that an indictment contains counts for separate and distinct arsons. But where several offenses are charged in the same indictment the general practice is, to compel the state, on the respondent's application, to elect on what counts to go to trial, and such election is a practical abandonment of the rest of the indictment. There was therefore no error in overruling the motion to quash, so far as it stood on the ground that distinct larcenies were charged in the different counts. The nolle prosequi as to the third and fourth...