Smith v. O'BRIENSmith v. O'BRIEN
- Reporters:
- , ,
- Before:
- Duncan
The plaintiff’s petition for habeas corpus alleges that he has been “deprived . . . from the benefit of a probable cause hearing, a record of the same and the right to show his innocence of the crime charged.” His brief asserts that he has a constitutional and statutory right to a probable cause hearing which was violated when a “secret indictment” was obtained before such a hearing was held.
The petition arises out of the following circumstances. The plaintiff was arrested on December 31, 1967, and charged with breaking, entering, and larceny, under
Upon hearing, the Superior Court (Dunfey, J.) denied the request to dismiss the indictment, subject to the plaintiff’s exception. The questions of law thereby presented were reserved and transferred by the Presiding Justice.
As this court has recently had occasion to observe, the purpose of a preliminary hearing in this jurisdiction is “to determine that an offense has been committed and that there is probable cause to believe the defendant has committed it.”
State ex rel McLetchie
v.
Laconia District Court,
106 N. H. 48, 50. The hearing is not a judicial trial of the issue of guilt or innocence, a question which the district court has no jurisdiction to determine.
Id;
The plaintiff calls attention to the provisions of
Contrary to the implications of the plaintiff’s argument, the preliminary hearing is not provided for the purpose of affording the accused an opportunity for discovery. Sciortino v. Zampano, 385 F. 2d 132 (2d Cir. 1967), cert den. 390 U. S. 906; United States v. Amabile, 395 F. 2d 47, 53-54 (7th Cir. 1968); Foster v. Commonwealth, (Va.) 163 S. E. 2d 565. See State v. Myal, 104 N. H. 188; Arlen v. Keene District Court, 109 N. H. 331. Its purpose is to determine whether probable cause exists for his detention pending grand jury action. State v. Chase, 109 N. H. 296. If the grand jury indicts before the hearing is held, the occasion for a hearing no longer exists. State v. Jackson, 43 N. J. 148, 165; State v. Singleton, (La.) 215 So. 2d 838, 840. The accused is thereafter detained to answer to the indictment.
No authority has been cited to support the view that an indictment is invalid unless preceded by prior arrest and a probable cause hearing. To the contrary, ample authority sustains the *319 proposition that an accused has no constitutional right that a preliminary hearing shall precede indictment. Hale v. Henkel, 201 U. S. 43; United States ex rel Kassin v. Mulligan, 295 U. S. 396. See also, Jaben v. United States, 381 U. S. 214, 220; State v. Jackson, supra; State v. Stallings, 25 Conn. Supp. 386, aff’d., 154 Conn. 272.
Dismissal of the indictment was properly denied. Foster v. Commonwealth (Va.) 163 S. E. 2d 565, supra; State v. Stallings, supra; State v. War, 38 N. J. Super. 201. There was no denial of due process in the circumstance that the indictment superceded the proceedings in the district court before the preliminary hearing could be held. State v. Jackson, supra.
Exception overruled;petition denied.
Lampron, J., did not sit; the others concurred.