State v. Myal

• Citation: 104 N.H. 188,182 A.2d 605
• Parties: STATE v. Chester F. MYAL.
• Decision Date: 29 June 1962
• Court: New Hampshire Supreme Court

Page 605

182 A.2d 605

104 N.H. 188

STATE v. Chester F. MYAL.

Supreme Court of New Hampshire.

Argued May 2, 1962.

Decided June 29, 1962.

William Maynard, Atty. Gen., William J. O'Neil, Asst. Atty. Gen., and Paul A. Rinden, County Atty., for the State.

Stanley & Stanley, Concord, for defendant.

BLANDIN, Justice.

The underlying question before us is whether a defendant charged with a misdemeanor had the right to take depositions before arraignment and plea. Our answer is no.

The right to take depositions in a criminal case which did not exist at common law (State ex rel. Reagan v. Superior Court, 102 N.H. 224, 227, 153 A.2d 403) is governed by RSA 517:13, which provides: 'The respondent in a criminal case may take the deposition of any person in his defense, upon giving the same notice of the caption thereof to the solicitor of the county that is required to be given to the adverse party in a civil case. * * *'

The specific issue is one of first impression here and authorities from other jurisdictions depending upon different statutes or policies would not be helpful, though it may be noted that able counsel has called to our attention no case which seems squarely in point. Our own court has touched upon the matter in State v. Naud, 73 N.H. 531, 63 A. 673. There a defendant who had been arraigned and bound over awaiting Grand Jury action sought to take depositions under P.S., c. 225, § 13, now RSA 517:13. The justice ruled in his favor, but upon appeal this ruling was reversed, the court speaking as follows: 'When the notice to take depositions was served upon the solicitor, no criminal case was pending against the defendant in which depositions could be taken or used, and the justice of the peace acted without authority of law in ordering the caption to proceed. At that time the defendant had simply been bound over to await the action of the grand jury. No indictment had been found against him, and whether one ever would be was a question about which nothing could then be known. Section 13, c. 225 of the public statutes of 1901, contemplates the pendency of a criminal action in which depositions are to be taken and used, the same as section 1 contemplates the pendency of a civil action when notice is given under it. * * * Until the defendant was indicted no criminal case was pending against him * * * and, as no indictment had been found when the notice was given, the proceeding was void.'

In the case before us, the defendant had neither been arraigned nor pleaded nor waived his right to do so, but rather had refused to plead pending the taking of depositions. Until there is a plea, there is no issue to be tried and there can be no valid conviction nor sentence imposed upon the defendant. Basta v. State, 133 Md. 568, 105 A. 773; 22 C.J.S. Criminal Law §§ 407, 414, pp. 1110, 1133; 14 Am.Jur., Criminal Law, §§ 258, 260, 262.

The defendant suggests that in the civil case of Buswell v. Babbitt, 65 N.H. 168, 18 A. 748, the court said that 'pending' meant simply 'remaining undecided,' and he urges that we apply that rule here. The case involved an action begun by attachment without completion of personal service upon the defendant until after the death of the original plaintiff and was prosecuted by his administrator. The question was whether the case was pending in favor of deceased...