State v. Robert Harre
| Decision Date | 02 November 1937 |
| Citation | 195 A. 244,109 Vt. 217 |
| Parties | STATE v. ROBERT HARRE |
| Court | Vermont Supreme Court |
October Term, 1937.
Authority of State's Attorney to Amend Predecessor's Complaint---Waiver of Failure to Minute Date Amendment Presented---Amendment of Predecessor's Complaint Not Signed or Sworn to by New State's Attorney---Remand Where Complaint Defective---Complaint Held Not Amendable.
1. State's attorney has authority to amend in matters of form or substance complaint presented by his predecessor in office.
2. Respondent in criminal prosecution, by first submitting to trial on merits, waived any defect in amendment to complaint arising from fact that court failed to minute thereon the day, month and year when it was presented.
3. In prosecution for unlawful sale of intoxicating liquor, where State's attorney attempted to amend complaint presented by his predecessor in office by inserting additional counts following statement in original complaint that complaint was made by predecessor as State's attorney, and such amendment was not stated to be made on oath of office of new State's attorney nor signed by him, under Article II of Bill of Rights court did not have jurisdiction of such amendment and conviction of respondent on one count thereof could not be sustained.
4. If on hearing in Supreme Court defect in complaint which is amendable is discovered, instead of arresting judgment verdict may be set aside and new trial ordered.
5. In prosecution for unlawful sale of intoxicating liquor, where State's attorney attempted to amend complaint presented by his predecessor in office and nol-prossed all counts in original complaint, but amendment was fatally defective because not stated to be made on his oath of office nor signed by him, held that there was nothing to amend on remand, since attempted amendment, not being properly in case could not be amended, so that motion in arrest of judgment overruled in lower court subject to respondent's exception must be granted and respondent discharged.
COMPLAINT for unlawful sale of intoxicating liquor. State's attorney attempted to amend complaint presented by his predecessor in office by adding new counts and entered nolle prosequi as to counts in original complaint. Plea, not guilty. Trial by jury in the Franklin municipal court, P. L Shangraw, Municipal Judge, presiding. At the close of the State's evidence a nolle prosequi was entered as to seven counts; a verdict was directed for the respondent on six counts; verdict of not guilty on nineteen counts; and verdict of guilty on one count and judgment and sentence thereon. The respondent excepted. The opinion states the case.
Judgment reversed, motion granted and respondent discharged.
P C. Warner for the respondent.
W. K. Sullivan, State's attorney, for the State.
Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.
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 thirty-three 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 are 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 anyone.
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, ...
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