State v. Williams, s. 302-77

Decision Date20 June 1979
Docket Number303-77,Nos. 302-77,s. 302-77
Citation406 A.2d 375,137 Vt. 360
CourtVermont Supreme Court
PartiesSTATE of Vermont v. John WILLIAMS.

Gregory W. McNaughton, Washington County State's Atty., and Philip H. White, Deputy State's Atty., Montpelier, for plaintiff.

James L. Morse, Defender Gen., William A. Nelson, Appellate Defender, David Curtis, Acting Appellate Defender, and Steve Dunham, Appellate Counsel, Montpelier, for defendant.


BARNEY, Chief Justice.

The defendant was charged by the state's attorney with lewd and lascivious conduct with a minor child in violation of 13 V.S.A. § 2602. Trial by jury was waived and the defendant found guilty of three offenses under this statute. The court found him not guilty of a kidnapping charge. Sentencing has been accomplished, and the defendant brings this appeal.

Three issues are raised. The first relates to the burden of the State to establish that the crime charged occurred on a particular day. This relates only to the first of the three charges making up the conviction. This portion of the information alleged that "on or about October 17, 1976" the defendant committed one of the acts with which he is charged. The argument of the defendant is that the particular act involved, under the evidence, probably was not committed until the early hours of October 18, a date on which the defendant was charged with a second offense.

With the law of this state expressly holding that, as to this crime, time of commission is not an essential element calling for precise proof as pleaded, State v. Daniels, 129 Vt. 143, 144, 274 A.2d 480 (1971), this claim of error looks elsewhere. The factual basis for the contention has a parallel in the facts of State v. Bleau, 132 Vt. 101, 103-04, 315 A.2d 448 (1974), which also dealt with the significance of time as part of certain criminal charges. In the Bleau case it is pointed out that not only was time not of the essence, but that the relationship of the criminal episode to midnight made the allegation of date necessarily uncertain, without amounting to a substantive shortcoming in the pleading.

The defendant argues that because the three counts of lewd and lascivious conduct upon which he was tried alleged offenses on or about October 17, 18 and 19 the State had a special burden to have its proof conform to the pleadings. The justification is said to be that with an offense already charged on the 18th, proof of an offense charged on the 17th that may have occurred past midnight somehow raises the spectre of double jeopardy on the 18th. The plain answer is that if two, or even three separate offenses were established, all on the 18th, there is no double jeopardy problem. Otherwise a criminal committing repeated offenses on the same date acquires a kind of immunity after the first one. This is, of course, not the law. So long as the proof sufficiently establishes the individual repeat offenses, the coincidence of date alone is no defect. In any event, the evidence is sufficient to support the findings of the trial court.

The defendant also raises an issue he identifies as a "speedy trial" issue. It relates to the action of the State in bringing two additional charges of lewd and lascivious behavior with the same minor. The offenses were alleged to have occurred at about the same time as the charge supporting the original arrest, but were not filed until some nine months later. For some reason the defendant ascribes the condemnation of Administrative Order 5, 12 V.S.A. App. VIII, and the constitutional claim to the charges brought nearest the time of trial. The measurement of time in cases raising the issue of deprivation of a speedy trial begins with the arrest, not on some other charge, but on the charge attacked. The measurement of delay applied to a criminal charge cannot commence until that charge is brought against the defendant. State v. Dragon, 130 Vt. 570, 298 A.2d 856 (1972). The defendant here did not ask for dismissal of the delayed charge, but rather of the two charges upon which trial was had within one week of service. This position will not support reversal.

The matter does merit further comment, however. The defendant had a real complaint when the State failed to comply with the trial judge's direction to bring any additional counts involving the criminal incident being prosecuted by July 15, 1977. In fact, the defendant was not arraigned on the new counts until August 19, 1977. These did not sufficiently establish probable cause in their affidavits to avoid dismissal. They were rebrought on September 12. ...

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25 cases
  • In re Williams
    • United States
    • Vermont Supreme Court
    • July 11, 2014
    ...145 Vt. 423, 436, 491 A.2d 1025, 1033 (1985) ; In re Meunier, 145 Vt. 414, 423, 491 A.2d 1019, 1025 (1985) ; State v. Williams, 137 Vt. 360, 365, 406 A.2d 375, 377 (1979).Affirmed.BURGESS, J. (Ret.), Specially Assigned, dissenting in part.¶ 50. I respectfully dissent from the majority's unf......
  • State v. Ramsay, 83-359
    • United States
    • Vermont Supreme Court
    • June 14, 1985
    ...court's consideration of allegations of assaults by defendant "over a period of time" violated the rule of State v. Williams, 137 Vt. 360, 364, 406 A.2d 375, 377 (1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 740, 62 L.Ed.2d 736 (1980). We Defendant was convicted of two counts of simple ass......
  • State v. Ross
    • United States
    • Vermont Supreme Court
    • September 8, 1989
    ...on a particular date. Consequently, time is not an essential element to be charged in the information. See State v. Williams, 137 Vt. 360, 362, 406 A.2d 375, 376 (1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 740, 62 L.Ed.2d 736 (1980). So long as it is shown that the crime occurred at a ti......
  • State v. Chambers, 82-575
    • United States
    • Vermont Supreme Court
    • May 11, 1984
    ...mere hearsay allegations of criminal conduct for which the defendant was never charged, tried or convicted. State v. Williams, 137 Vt. 360, 364, 406 A.2d 375, 377 (1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 740, 62 L.Ed.2d 736 (1980). Contra 18 U.S.C. § 3577; United States v. Marshall, 7......
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