State v. Alfred

87 Vt. 157 | Vt. | 1913

Watson, J.

The State Constitution (Chap. II, Sec. 4) provides that courts of justice shall be maintained in every county in this State, and shall be open for the trial of all causes proper for their cognizance; and justice shall be therein impartially administered, without corruption or unnecessary delay. It contains no provision more particularly regulating or fixing the terms of court, or the times of holding the same. This being so, it was within legislative power to determine the number of, and times for, stated or regular terms in each county; and in the exercise of this power,'it was also within the province of the Legislature to make such provisions for special terms, the ordering of the same, and the nature of the business to be transacted thereat, as in its judgment the public welfare may require. State v. Williams, 2 McCord, 301; State v. Hallman, (S. C.) 60 S. E. 682; State v. Davis, 88 S. C. 204, 70 S. E. 417; Banks v. Commonwealth, 145 Ky. 800, 141 S. W. 380. See Thorwarth v. Blanchard, 87 Vt. 38, 87 Atl. 52.

The statute provides that, "The presiding judge of the county court may, in his discretion, at any time, order a special session of such court for the trial of criminal cases.” Substantially the law of this section has existed by statute for more than a century, and there is no case to prove that an attack upon its validity has ever before been made, — affording strong argument that such an attack can not successfully be made.

It was within legitimate legislative' action to confer the power to call such special sessions upon the presiding judge of the county court. Barber v. State, 13 Fla. 675; Bass v. State, 17 Fla. 685; Merchant v. North, 10 Ohio St. 251; Hardin v. State, 38 Tex. 598; Grinad v. State, 34 Ga. 270; Spann v. State, 47 Ga. 553; Banks v. Commonwealth, cited above.

It is said that since by section 1359 of the statute, the action of the court in such special session is limited to criminal matters, a tribunal different from the one contemplated by the chapter of which that section is a part, is created. But this position is untenable. As before observed, provisions for such special sessions are made in the interest of the public welfare; and limiting the causes to be there heard and determined, to those of a criminal nature, may be considered in beeping with the constitutional right of persons charged "with criminal of-fences, to a speedy public trial. Yet whether the powers of the court are general, as at the regular terms, or limited, as by the statute in question, the session is a term, though not a regular term, of the county court, and within the statutory limitation the court has the same jurisdiction and authority as at a regular term. State v. Williams, cited above; Penman v. Commonwealth, 141 Ky. 660, 133 S. W. 540; Bales v. State, 63 Ala. 30; Wilson v. State, 52 Ala. 299. Not only may pending criminal cases be there heard, but causes of this character may be there commenced and determined. Penman v. Commonwealth; State v. Register, 133 N. C. 746, 46 S. E. 21.

It is further said, (1) that the statute makes no provision for a hearing, public or otherwise, upon the question of whether there should be a special session; (2) that the ordering of such a session is a matter in which the public, and those having business therein, are interested, and should have an opportunity to be heard; and (3), that there is no provision by which notice is to be given to the public, or to those interested as having business at such session, of the time when the session will open and business therein begin; — by reason of all which a court convened pursuant to section 1359, is not a court of justice under the Constitution, and a trial by such court would not be in accordance with the law of the land, — relying upon Chap. I, Sec. 10, and Chap. II, Sec. 4, of the State Constitution and upon the 14th Amendment of the Federal Constitution.

In this instance, the order for the special session was made at the request of the state’s attorney of the county, representing the interests of the State, hence the question of necessity of notice to the public, giving an opportunity to be heard on the question of making the order, is not in the case.

So far as the rights of the respondent are concerned, no one of the three positions above taken is sound. The authority of the presiding, judge, in his discretion, to order a special session, does not by statute depend upon the desire of persons accused of crime, or to be tried, and they are not, in law, entitled to be heard on the advisability or necessity of such a session. Collier v. State, 20 Ark. 36. Nor is the discretion thus exercised by the presiding judge subject to review in this Court. Mattingly v. Darwin, 23 Ill. 618; Grant v. State, 62 Ala. 233; Commonwealth v. Graves, 18 B. Mon. 33. Nor was it necessary that the presiding judge should be in the county at the time'of making the order. He was within the State and within his jurisdiction to act upon such a question.

The order was filed in the office of the clerk of the court before the opening of the special term. This was sufficient (Grant v. State), and all parties were bound to take notice thereof. Sharp v. Pike, 5 B. Mon. 155; Collier v. State, cited above. In the absence of statutory requirements in this respect, nothing more was necessary. In Penman v. Commonwealth, before cited, the court said it was eminently proper for the court to give notice of the special term to the appellant, and the fact that his ease would be taken up, so he might prepare his defence, although the failure to give such notice would not, in the absence of any other reason, constitute error. Harman v. Copenhaver, 89 Va. 836, 17 S. E. 482.

It is argued that the order should show the causes to be tried and the names of the persons to be put on trial. This is inconsistent with the rule that the court has the power at such term to take cognizance of cases not pending when the order was made, and it is not required by statute. The law prescribes no set form to be used in appointing a special term, and any form, clearly indicating the purpose of the presiding judge to order such a term at a time stated, and using words adequate to convey that idea, is sufficient to make the order a valid one. Mattingly v. Darwin, cited above; Peeples v. State, 46 Fla. 101, 35 So. 223, 4 Ann. Cas. 870.

The fact that the presiding judge was unable to be present, and was not present, at the opening of the special session, does not invalidate the term. The assistant judges had the power to open the court, and -to keep it adjourned from time to time, as was done.

Judgment that there ivas no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be done.