State v. Stimpson

• Decision Date: 25 October 1905
• Citation: 78 Vt. 124,62 A. 14
• Court: Vermont Supreme Court
• Parties: STATE v. STIMPSON. STATE v. LEE.

62 A. 14

78 Vt. 124

STATE

v. STIMPSON. STATE

v. LEE.

Supreme Court of Vermont. Orleans.

Oct. 25, 1905.

Exceptions from Orleans County Court; Tyler and Munson, Judges.

V. H. Stimpson was convicted of rape and Edward Lee was convicted of grand larceny, and they bring exceptions. Cases heard together. Exceptions overruled.

Argued before ROWELL, C. J., and MUNSON, START, WATSON, HASELTON, and POWERS, JJ.

In Stimpson's Case: E. A. Cook, State's Atty., for the State. J. W. Redmund, for respondent.

In Lee's Case: F. G. Bicknell, State's Atty., for the State. Taylor & Dutton, for respondent.

ROWELL, C. J. The case against Stirnpson is an information for statutory rape, and the one against Lee is an information for grand larceny. The principal question in the former, and the only question in the latter, is whether section 1867 of the Vermont Statutes, as amended by Act No. 46, p. 34, Acts 1898, and Act No. 64, Acts 1904, is constitutional. It provides that state's attorneys may prosecute by information all crimes except those punishable by death or by imprisonment in the state prison for life. It is claimed that said section is in contravention of the declaration in the Constitution that no person can "be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers." This claim is based upon the contention that the words "laws of the land," as there used, require prosecutions for common-law felonies to be by indictment, because it is said those words as used in Magna Charta, from which we borrow them, required that by settled judicial construction in England at the time of the adoption of our Constitution, and that it is to be presumed that we took that construction with the words. As bearing on this question, it is important to consider whether that declaration in the Constitution has received a practical construction that has been acquiesced in for a considerable time; for, if it has, that will be a valuable aid, to say the least, in determining the intent and meaning of those words as there used.

As early as 1779 state's attorneys were provided for, and authorized to prosecute, manage, and plead, in all matters proper, for and in behalf of the state. Slade's State Papers, 331. By an act passed November 10, 1797, it was made the duty of state's attorneys to file informations ex officio in matters proper therefor. Rev. St. 1797, c. 64, § 1. By an act passed February 27, 1787, it was provided that no person should be held to trial, nor put to plead for a capital offense punishable with death, unless a bill of indictment was found against him therefor by a grand jury lawfully impaneled and sworn. St. 1787, p. 82. This was only 10 years after the adoption of the Constitution, and indicates that thus early the Legislature thought that without such an enactment one might be prosecuted for a capital offense even otherwise than by indictment; for it is not to be presumed that the Legislature thought it was passing a useless act. This provision was carried into Revision 1797, p. 106, c. 3, § 65. By an act "for the punishment of certain capital and other high crimes and misdemeanors," passed March 9, 1797, it was provided that no person should be tried for any offense under said act until a bill of indictment was found against him by the grand jurors attending the Supreme Court of Judicature. Revision 1797, p. 173, c. 9, § 36. This act did not include larceny, except horse stealing. On March 4, 1797, during the same session, an act was passed "for the punishment of certain inferior crimes and misdemeanors." Revision 1797, p. 175, c. 10. This act included larceny of money, goods, chattels, bonds, bills, notes, etc., regardless of value, and divers other offenses but did not provide how any of them should be prosecuted, and larceny is a felony at common law. These two statutes, taken together, point strongly to the conclusion that at that time it was not supposed that the Constitution required common-law felonies to be prosecuted by indictment, but that it was for the Legislature to say what ones should be thus prosecuted, and what ones might be thus or otherwise prosecuted. The act of March 9, 1797, was re-enacted in 1818 with some additions, but not with the addition of larceny, and the act repealed. But the provision in respect of prosecuting by indictment was retained (Acts 1818, p. 19, c. 1, § 37), and continued in force till the Revision of 1839, unless it was changed by chapter 9, § 1, p. 19, of the Acts of 1819, constituting state's attorneys "informing officers," which is doubtful, although it is said in State v. Magoon, 61 Vt. at page 47, 17 Atl. 729, that prosecution by information of all crimes was authorized by statute from 1819 to 1839. The act of March 4, 1797, was re-enacted in 1821, with an increased penalty for larceny, but was still silent as to the mode of prosecution, and continued so until the Revision of 1839.

Since 1816 it has been the law that, when a person is confined in jail on a complaint for a crime or misdemeanor, the Supreme Court may, on his application in writing, direct an information to be filed against him, whereon the court may receive and record a plea of guilty and award sentence. V. S. 1895. The act of October 30, 1828, provided that, whenever a person was in actual confinement in jail by virtue of a complaint for an offense against said act "for the punishment of certain capital and other high crimes and misdemeanors," the county court should have power and authority, on the application in writing of such person, to direct an information to be filed against him for the offense for which he stood charged, on the filing of which it was made the duty of the court to proceed in the trial in the same way and manner as if an indictment had been presented by the grand jury. Acts 1828, p. 4, No. 23, § 3. And that has been the law ever since (V. S. 1897), and has always been acted upon, except in homicide cases, probably, and without objection as far as we know. This, in effect, is a legislative construction that the Constitution does not require prosecution by indictment in any case, unless we say that the Legislature thought the requirement, if it existed, could be waived by the accused with its consent, which we can hardly do, for the law seems to be otherwise. That mere rights and privileges guarantied by the Constitution can be waived, to some extent at least, is probably true. But it would seem that constitutional requirements as to the mode and manner of instituting prosecutions involving the deprivation of life or liberty cannot be dispensed with by the Legislature, nor waived by the accused, even with the consent of the Legislature. Cooley, Const. Lim. (6th Ed.) 214 et seq., 390; Cancemi v. People, 18 N. T. 128; Hopt v. Utah, 110 U. S. 574, 579, 4 Sup. Ct. 202, 28 L. Ed. 262. In 1839 it was enacted that no person should be held to answer in any court for an alleged crime or offense, unless upon indictment by a grand jury, except in case of proceedings before a justice and when a prosecution by information was expressly authorized by statute. Rev. St c. 93, § 1. This was but the act of March 9, 1797, as re-enacted in 1818, with some additions. By chapter 102, § 1, of the Revision of 1839, it was provided that state's attorneys might prosecute by information all crimes not capital and where the punishment was by imprisonment in the state prison for a term not exceeding seven years. Both of these statutes are still in force, with an enlargement in the latter of the authority of the state's attorney to prosecute by information all crimes not capital and not punishable in the state prison for life.

It was decided in State v. Leach, 77 Vt. 166, 59 Atl. 168, that statutory rape can be prosecuted by information. But the constitutionality of that mode of prosecuting was not raised nor considered, and the question has never been decided by this court, nor raised in it but twice before—once in 1880, in State v. Haley, 52 Vt. 476, and again in 1888, in State v. Magoon, above cited, in both of which, strong judicial utterances were made in favor of the correctness of the long practical construction above shown. State v. Haley was an information for a liquor nuisance, a mere misdemeanor, and the respondent contended that the proceeding should have been by indictment. But the court held otherwise, and said that the statute had always been supposed to mean that all crimes, except capital and those for which the punishment exceeded seven years in the state prison, might be prosecuted by information, without regard to any distinction between felonies and misdemeanors, and without regard to the punishment prescribed, provided it did not exceed seven years in state prison and was not capital, and that such had been the construction and uniform practice by all courts, judges, state's attorneys, and lawyers down to that time. State v. Magoon was an information for grand larceny. The court said that, prosecutions by information for high crimes having been authorized by statute from a time reaching back to a period when many of those who framed and adopted our present Constitution were living, and those statutes having been acted upon unquestioned for nearly 70 years, it would not be profitable to consider the respondent's contention of unconstitutionality; its consideration being unnecessary. The question was not involved. State v. Dyer, 67 Vt. 690, 32 Atl. 814, was an Information for conspiracy, held to be a misdemeanor; and the contention was that the case did not come within the statute authorizing the state's attorney to prosecute by information, because the punishment might be by imprisonment in the state prison for more than seven years. Thus it appears that during substantially the whole time since the adoption of the Constitution the Legislature has practically construed the clause in question not to require common-law felonies to be prosecuted by...