State v. Wakefield
| Decision Date | 24 September 1888 |
| Citation | 15 A. 181,60 Vt. 618 |
| Parties | STATE v. WILLIS WAKEFIELD |
| Court | Vermont Supreme Court |
MAY TERM, 1888
COMPLAINT charging intoxication. Heard on complaint, plea replication and demurrer thereto, September Term, 1887 POWERS, J., presiding. Judgment that the replication is sufficient, overruling the demurrer. The case appears in the opinion of the court.
Demurrer overruled, replication adjudged sufficient and cause remanded.
Dickerman & Young, for the respondent.
Present: ROSS, ROWELL, TAFT AND TYLER, JJ.
The complaint is for intoxication. Plea, that the respondent, on the 22d day of August, 1887, at Newport, went before Peter Connal, a justice of the peace, within and for the County of Orleans, and entered a complaint against himself for the offense charged in this complaint and requested the justice to fine him therefor; whereupon the justice heard the complaint and the confession of guilt, adjudged the respondent guilty and sentenced him to pay a fine of five dollars and costs, which he paid. It is claimed that the judgment and sentence are a bar to this prosecution. Replication, that this complaint had previously, on the same day, been preferred by the state's attorney, and the warrant issued thereon, returnable before another justice, and that the respondent went before Justice Connal and procured his own conviction for the sole purpose of avoiding the effect of this complaint. The State claims that the judgment and sentence thus obtained were extrajudicial and are not a bar to this complaint. The respondent demurs generally. The only question is whether or not the replication presents sufficient matter in avoidance of the plea.
Art. 11 of Chap. 1, of the Constitution of this State says that warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, ought not to be granted.
State's attorneys, town grand jurors and certain designated police officers in incorporated villages are made by our statutes informing officers of offences committed within their jurisdiction. R. L. ss. 1618, 1619, 1622. Sec. 1749 provides that when any person, other than such informing officers, becomes a prosecutor, he shall enter his name and place of residence at the foot of the complaint, information, or indictment, in which he becomes a prosecutor, and shall be liable to pay costs and may receive costs if the respondent is convicted. Sec. 1667 provides that no warrant shall issue, except on complaint of an informing officer, until the magistrate has taken a recognizance for costs and made a minute thereof as in civil cases; and sec. 1719 requires that he shall, at the time, make a minute on the complaint, under his official signature, of the day, month and year when the same was exhibited to him.
It was held in State v. Soragan, 40 Vt. 450, that it is indispensable that the complaint show on its face that it is presented by one having proper authority; that the authority of the informing officer is fundamental, as the complaint is the basis of the conviction. In State v. Perkins, 58 Vt. 722, it was held that the failure of a magistrate to make a minute such as the statute requires, is a fatal defect and not amendable.
The replication alleges and the demurrer admits that none of the foregoing constitutional and statutory requirements were complied with. There is no provision in our statute by which a magistrate can of his own volition, on request of an offender, set in motion the machinery of the law. Though he may have jurisdiction of the person and the subject-matter, he cannot have jurisdiction of the process, except on the information of an officer thereto authorized by statute or by a private prosecutor under the statutory requirements.
Jurisdiction is defined to be the authority...
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