State v. Urban
| Decision Date | 30 November 1953 |
| Citation | 98 N.H. 346,100 A.2d 897 |
| Parties | STATE v. URBAN. |
| Court | New Hampshire Supreme Court |
Louis C. Wyman, Atty. Gen., Arthur E. Bean, Jr., and Elmer T. Bourque, Law Asst., Concord, for the State.
Stanley C. Urban, Nashua, for defendant.
The single issue in this controversy is whether the prosecution for a misdemeanor in a municipal court by a chief of police or a police officer is prohibited by the statute law of this state. The defendant claims that such a prosecution is forbidden by R.L., c. 380, § 23, which reads as follows:
This statute, § 23, is of ancient vintage having been first enacted February 8, 1791 during the first constitutional period of the state and at that time was limited to sheriffs and deputy sheriffs. Laws 1792 ed. p. 145; 5 Laws of New Hampshire, c. 44, pp. 608, 610. It has continued in substantially the same language without change except that it now includes police and other specified officers. Whether this statute was intended to preclude police officers from prosecuting criminal cases in municipal courts has never been decided but there are dicta indicating the contrary. In State v. Stearns, 31 N.H. 106, 110-111, there was a prosecution by the city marshal of Portsmouth for keeping a bowling alley without a license and the court stated, 'It is prosecuted by a public officer, as part of his official duty, but might be prosecuted by any other person as well.' The chief of police of the city of Manchester has been described as Goodell v. Woodbury, 71 N.H. 378, 380, 52 A. 855, 856. In that case it was stated that the 'obligation thus imposed on him [by the city ordinance] to enforce the laws of the state within the city is both peremptory and plainly defined'. There is no indication in the opinion that the ordinance was considered contrary to the statute law of the state.
R.L. c. 380, § 24, which was enacted at the same time as section 23 and originally was a part of it, provides that 'any * * * complaint and warrant * * * made by a * * * police officer * * * for another person shall be void.' That statute was not construed literally and it was held that one police officer could make out a complaint and warrant for signing by a fellow police officer. In such a case it was concluded that the police officer was not rendering a personal service to 'another person' but was officially performing a service to the state as represented by the municipality charged with the enforcement of law and order. State v. Boiselle, 83 N.H. 339, 340, 143 A. 704.
Maine has a statute which provided that no sheriff shall appear before any court as attorney and it was held that the reason for the passage of the statute did not apply to proceedings in behalf of the state. Criminal process 'is judicial action for the state not civil process for 'any party' or 'any other person." State v. McCann, 67 Me. 372, 375. Similar statutes exist in Massachusetts and Vermont but we do not find that they have been construed to preclude police officers from enforcing the law by the prosecution of criminal cases involving misdemeanors. At least in this jurisdiction and in New England the statutes prohibiting police officers from appearing as attorneys in court have been aimed primarily at civil proceedings. Edgerly v. Hale, 71 N.H. 138, 144-145, 51 A. 679; Sawyer v. Wood, 59 N.H. 347; Osgood v. Norris, 21 N.H. 435, 437. In view of the history of R.L. c. 380, § 23, the decision in State v. Boiselle, 83 N.H. 339, 143 A. 704, the reenactment of the statute in several statutory revisions without change, and the construction placed on similar statutes in other jurisdictions, we conclude that in prosecuting a misdemeanor in a municipal court a police officer is not...
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Frese v. Formella
...practice that has continued in one form or another since 1791 and is still permissible under existing statutes." (citing State v. Urban, 98 N.H. 346, 100 A.2d 897 (1953) )); see also N.H. Rev. Stat. § 41:10-a (recognizing the power of police officers to prosecute misdemeanors). Private citi......
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...317, supra; State v. Kent, 4 N.D. 577, 62 N.W. 631, 635; State v. Cook, 84 Wash.2d 342, 525 P.2d 761, supra; see also, State v. Urban, 98 N.H. 346, 347, 100 A.2d 897). Those courts that have found that a prosecutor was practicing law without a license have vacated convictions solely on that......
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Frese v. MacDonald, Civil No. 18-cv-1180-JL
...in one form or another since 1791 and is still permissible under existing statutes." Id. at 98-99, 179 A.2d 284 (citing Urban, 98 N.H. at 347, 100 A.2d 897 ); see generally Martineau, 148 N.H. at 260-62, 808 A.2d 51 (tracing the history of this practice at common law back to practices emplo......
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...law both before and after verdict and they have been disposed of in this court. State v. Smith, 98 N.H. 149, 95 A.2d 789; State v. Urban, 98 N.H. 346, 347, 100 A.2d 897; State v. Wood, 98 N.H. 418, 101 A.2d 774; State v. Morris, 98 N.H. 517, 103 A.2d 913; State v. Duranleau, 99 N.H. 30, 31,......
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Unusual (and Unconstitutional?) Prosecutorial Models and a Recommendation for Reform
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