State v. Davis
52 Vt. 376
Vt.
1880
Check Treatment

The opinion of the court was delivered by

Ross, J.

I. “ Presentments by a grand juror shall be made under his oath of office and official signature to a justice by information in writing.” Gen. Sts. c. 15, s. 87. This provision is *379substantially complied with by the complaint in this case. It is addressed to a justice of the peace by name, by a grand juror on his oath of office, over his official signature. The statute does not require that the grand juror’s name should be inserted in the body of the complaint. It is usual to insert it, but it is not made essential by the statute. The complaint was sufficient in this respect on a motion to quash.

II. The exception to allowing evidence of the fonner conviction on the ground that the complaint was defective, and that there was a variance between the complaint and evidence, is not well taken. The statute only requires a former conviction to be set forth substantially, and provides that “ any mistake, omission, or error in setting it forth, may be corrected, supplied, or amended on trial.” Gen. Sts. c. 94, s. 28. The only reasonable criticism on the sufficiency of the complaint in this respect arises from the use of the word “ before”. If that word was omitted, the allegation would contain the exact element required by the statute. The respondent claims that its use makes the alleged conviction without date, except that it was before May 31, 1877. But such is not the natural nor apparent meaning of the allegation. Obviously the word “ before ” has reference to the time of the exhibition of the complaint, and not to the time of the former conviction, which is alleged to have occurred May 31, 1877.

III. The exception in regard to the indefiniteness of the specification is not revisable in this court. In State v. Bacon, 41 Vt. 526, it is said : “ It was undoubtedly in consequence of the general form of charging the offense, and to prevent possible injustice in the administration of the law, that the court in State v. Conlin, 27 Vt. 318, and in State v. Freeman, 27 Vt. 523, held that the accused was entitled to a specification of offenses. But this is always, in prosecutions of this character, a matter of discretion with the court, to be exercised with reference to the circumstances of the case.” There is much good sense in the rule thus enunciated. The court conducting the trial can judge much better than any other tribunal, the means and opportunity which *380the State’s attorney has for furnishing definite specifications-, as well as the necessity which the respondent has for requiring them, to enable him fairly to .try the case. The witnesses in this class of cases are often reluctant to reveal to the prosecution any facts to enable it to make definite specifications, beyond a statement of the names of the witnesses to whom sales are expected to be proved ; and to require the prosecution to be limited to a particular day for each offense expected to be proved, would operate, not to prevent injustice, but to defeat justice. Notwithstanding the difficulty and impracticability of requiring the utmost precis-, ion in specifying the time and place of the commission of the offenses expected to be proven, the prosecution should be required to furnish the respondent a fair specification, and one as definite in these particulars as it had the means of furnishing. Beyond furnishing the names of the witnesses, the specification in the case at bar was mere shunage, and should not be tolerated by any court. It was not an attempt to furnish in good faith a specification of the times and places of the commission of the offenses expected to be proven. The case had been tided by the justice, and once by the County Court, and there would seem to have been no occasion for such indefiniteness, and also no apparent necessity for the requirement of a specification by the respondent. Possibly the County Court entertained this latter view, and so refused to order any more definite specifications. This class of cases is no exception to the generality of criminal cases ; and prosecutors and respondents should be required to deal with each other in regard to specifications and all other matters with fairness and in good faith. We have been led to say thus much, lest, by passing the matter in silence, this court might be thought to give countenance to such an utter failure to comply in fairness with an order which the respondent had the legal right to have made.

IV. The most serious exception arises on the motion for a new trial. It appears that the oath required to be administered to jurors in criminal cases was not administered to the jury who tried the respondent. They had received the ordinary oath, prescribed in civil cases. But this was no compliance with the law *381requiring the criminal oath to be administered to the jury in each criminal case tried. This oath is not only a summary of the duties of the jurors, but is also the only security which the State and the respondent have for a faithful, fearless discharge of those duties. It has been so regarded for many centuries. By the common law, in a criminal case the jury is not regarded as impanelled until the oath is administered. ■ The general, if not universal, current of the decisions hold that a trial by an unsworn jury is a mistrial. It is not a legal trial, a right which every respondent is entitled to have accorded him. It is not contended by the counsel for the State that the verdict rendered by such a body of men, —for they cannot be called legal jurors in the case, — can be upheld, except upon the doctrine contended for by him, that because the respondent’s counsel knew before the close of the trial that the jury had not been sworn, it was a waiver of his right to require that they should be sworn. Nor does he contend that this doctrine applies in cases where one of the higher crimes is charged. But it is contended that in misdemeanors, although no case in point is cited, very many things may be waived by the respondent, and, by analogy, the oath of the jury. The offense with which the respondent was charged arose under the law to regulate the sale of intoxicating liquors, which has been held to be in the nature of a police regulation, and of such a character that the Legislature might refuse to accord him the common-law right of trial by jury, and, therefore, it is argued that he may waive that right. This argument is of little avail, inasmuch as the Legislature has conferred the right to such a trial. In this class or grade of offenses, the respondent is allowed to plead by attorney, to waive the right to be confronted with his accusers and the witnesses against him, and to do some other things which would not be accorded were he on trial for a felony; but he must do it intelligently and deliberately.' There are also other rights secured to a respondent, like the right to be tried in a particular town, which, when accused of a misdemeanor, he might and would waive, if he went to trial without insisting upon them. State v. Meader, 47 Vt. 78. He may concede that witnesses, if called, would swear to particular facts, and waive their produc*382tion, or waive the administration of the oath to a particular witness, and allow his unsworn statement to be received and weighed by the jury against him. United States v. Sacramento, 25 Am. 744. But all such waivers are distinguishable from the one claimed in the present case. We are asked in substance to hold, that by allowing the trial to proceed after his attorney knew that the jury had not been sworn, the respondent waived the right to be tried by a legal jury, — the very right which the Legislature had given, and which the court were endeavoring to accord'to him. In such case the jury, being both judges of the law and facts, become a most important factor of a legal court to determine the guilt or innocence of the accused. If a respondent can waive so essential and vital a right, he should do it fairly and knowingly. He should not be held to have done it by implication, or by silence merely.- On the motion, we think the County Court should have treated the trial as a mistrial, and have awarded the respondent a new trial.

The exception to the overruling of the motion is sustained, the verdict set aside, a new trial granted, and cause remanded.