46 A.2d 921 | Vt. | 1946
The respondent was indicted for the crime of murder in the first degree, and was tried and convicted. He admitted the commission of the homicide, but pleaded self defense and insanity. Before his arraignment and plea he moved to quash the indictment. The motion was denied, subject to his exception. This is the first question for our consideration.
The motion was based upon matters not appearing upon the face of the record and was therefore an inappropriate procedure. A motion to quash does not allow joinder of issues of fact depending upon the testimony of witnesses, State v. Ward,
It appears that the venire, by the authority of which the sheriff summoned the grand jury, was not signed by the county clerk. The fact was not alleged in the respondent's written motion, but the transcript shows that in the course of the hearing thereon the point was developed by the testimony of the clerk and the production of the venire as an exhibit, and was thus clearly brought to the attention of the trial court. We treat it therefore as an issue raised below. Moreover, as we shall see, it is a question touching the jurisdiction of the grand jury to find the indictment, and consequently the jurisdiction of the trial court to proceed with the trial thereon, and so, under the circumstances, might be presented in this Court for the first time. Aguirre v. Aja,
A venire is the common law process of venire facias juratores
which is "a writ directed to the sheriff commanding him to cause to come from the body of the county, before the court from which it issued, on some day certain and therein specified, a certain number of qualified citizens to act as jurors in the said court." 2 Bouvier's Law Dictionary (Rawles' 3rd Revision) 3390. At common law the precept was either in the name of the King or of two or more justices of the peace. 2 Hale, Pleas of the Crown, 154;Commonwealth v. Burton, 4 Leigh (Va.) 645, 26 A.D. 337, *413
338. The only essential difference between the writ as it was in the time of Sir Matthew Hale (1609-1676) and as it now exists in this jurisdiction is in regard to the issuing authority. Under the statutes above quoted this duty is mandatory upon the county clerk, who is the clerk of the county court (P.L. 1394), when the judges of that court have decided in their discretion that a grand jury shall be summoned. In other respects the common law still prevails, and at common law a venire is necessary to authorize the sheriff to summon the grand jurors. People v.McKay, 18 Johns, N Y 212, 216; United States v. Antz, 16 F 119, 124; State v. Light-body, 38 Me 200, 201. A grand jury summoned without process cannot return a valid indictment. Nicholls v.State, 5 NJL 539, 543; State v. Ridley, 9 NJL 293, 299; Joyce on Indictments (2nd ed) para. 76, p. 91. In State v. Fleming,
In this State a seal is not required for the validity of process, but all writs must be signed by the authority designated by statute. Without such signature a writ is void and confers no jurisdiction, Ramsey v. McDonald,
It cannot be held that the respondent should have made his objection, before or at the time of organization of the grand jury, or be considered to have waived that objection, when he had no right to be heard by that body in the proceedings taken against him. State v. Ward,
A venire is issued by the clerk only when it is signed by him. See Blaine v. Blaine,
The State, in its brief, asks that, if it should be held that the lack of the signature is a material defect, we will order the Clerk to sign the venire nunc pro tunc, in order to clear the record. But void process cannot be amended, and this is what we should be attempting to do if we were to comply with the request.Ramsey v. McDonald, supra; State v. Fleming, supra.
A further ground of objection to the indictment is that the venire commanded the sheriff to summon the grand jurors "to appear before the Hon. County Court to be holden at Manchester within and for the county of Bennington, 7th day of June A.D. 1945." The fault found is that the summons did not designate a regular or special term of court. The June Term of Bennington County Court was convened, according to law, upon that day. If there was irregularity in the respect claimed, which we do not decide, it was only technical in nature, according to the rule inState v. Brewster,
It also urged that the return of the sheriff shows that he summoned the grand jury on June 22, 1945. This was clearly an inadvertence, for the grand jury attended on the 7th. The Court had the discretionary power to permit an amendment of the return to show the true time of the summons. Bent v. Bent,
Still another complaint is that the venire describes those to be summoned as "persons nominated by the authority of the towns in said county . . . . and returned to the County Clerk of said County to serve as Grand Jurors." The printed form upon which the venire was made out was appropriate for use under the law as it was when P.S. 3515 was in force and the grand jurors were nominated in each town by the board of civil authority of that town. But No. 76 of the Acts of 1917 (Now P.L. 3412) makes the preparation of a list of the names of persons qualified to serve as grand and petit jurors from each town in the county the duty of *415 a board of jury commissioners, consisting of the assistant judges of the county court and the county clerk. In view of what has been said concerning the invalidity of the indictment for another reason, all that is necessary to say about this irregularity is that it is one that is not at all likely to occur in the future, and so need be given no further attention.
The respondent claims that the indictment is void because of the circumstances under which it was found and returned by the grand jury. The undisputed facts, shown by the transcript, are these; On June 7, 1945, the grand jury indicted the respondent, and were then excused by the court, subject to call. The respondent was arraigned and pleaded not guilty. Thereafter, and before the day set for the trial, the presiding judge examined the indictment and discovered the omission of certain words therein which, as he considered, rendered it defective as charging murder in the first degree. The grand jurors were recalled, and assembled on June 18. The presiding judge inquired of them whether they had intended to indict the respondent for the crime of murder in the first degree, and received an affirmative answer, whereupon he explained the defect and informed them that they had been called back to return the kind of an indictment that they had previously voted. At the suggestion of the Court the State's Attorney entered a nolle prosequi to the pending indictment and the Court informed the grand jury that: "We have prepared another indictment which properly sets forth the charge as voted by you," and said further that all that was necessary to be done was that the foreman should sign it as a true bill and present it, and that they might retire if they wished to do so. In the presence of the three members of the court, the State's Attorney, and the court reporter, the grand jury voted to return the new indictment and it was signed as a true bill and presented by the foreman.
This procedure was irregular and is not to be commended. It is within the power of the court to resubmit to a grand jury an indictment, which is defective or imperfect, (Joyce on Indictments 2 ed § 130, p. 155) and in such case it is not necessary that the witnesses shall be recalled and re-examined. Joyce on Indictments 2 ed § 123, p. 149; 2 Wharton, Criminal Procedure, 10 ed § 1293, p. 1754. But it is not proper for the court to draw up an indictment, the sufficiency of which it may be called upon *416
later to decide, and submit it to the grand jury. The duty of preparing the bill is placed by statute upon the State's Attorney, P.L. 3409; Gould v. Parker,
In State v. Brewster,
Nothing need be said concerning the respondent's motion in arrest of judgment which was based upon the same claims that we have just considered.
Although the judgment below must be reversed and the indictment abated it does not follow that the respondent may not be held for the action of another grand jury legally summoned and constituted. He has not been in jeopardy since no valid judgment has been rendered against him. State v. Emery,
Several exceptions taken upon trial may be considered in view of the probability that the questions raised therein will again be presented.
The State offered in evidence three photographs of the partially clothed body of the victim of the homicide, showing in gruesome detail the injuries that caused his death. The respondent objected on the ground that the exhibits were offered for the purpose of exciting sympathy and that the injuries could readily be described by the witness. The photographs were received, subject to the exception. The ruling was within the discretion of the trial court. Hutchinson v. Knowles,
After his arrest and before the trial the respondent had been committed to the State Hospital for the Insane, for the purposes of observation as to his sanity. Dr. Chittick, the Superintendent of the Hospital, was called as an expert witness by the State, and having been duly qualified as such, testified that in his opinion the respondent was sane. On cross examination he said that this opinion was based in part upon information given him by his assistants. These assistants were not produced as witnesses, and the facts reported by them were not given in evidence. The respondent moved to strike out Dr. Chittick's testimony as to the respondent's sanity, because it was based in part upon hearsay. The motion was denied, and the respondent excepted. It is error to admit the opinion of an expert based in whole or in part on facts the existence of which is not within the tendency of the evidence. Platt, Admx. v. Shields, et al,
It is held in United States v. Aluminum Co. of America, 35 F *418 Supp 820, 823, that: "Opinion testimony by an acceptable expert resting wholly or partly on information, oral or documentary recited by him as gathered from others, which is trustworthy and which is practically unobtainable by other means, is competent even though the first hand sources from which the information came cannot be produced in court." This holding goes further than our decisions have ventured, but, in any event, it would not be applicable here, because Dr. Chittick did not recite the information received by him, and it did not appear that his informants were not available as witnesses. We need not, moreover, consider what the result would be if the hearsay testimony had been received without objection.
There was evidence tending to show that at the time of the homicide the respondent was under the influence of intoxicating liquor. He requested the court to charge that: "Drunkenness may reduce a homicide from murder in the first degree to murder in the second degree or manslaughter, if it is so extreme as to prevent the existence of intention to kill." It is the established rule in this state that voluntary intoxication does not excuse or palliate crime, or operate to reduce the degree of homicide where the perpetrator was previously in the requisite condition of mental responsibility." State v. Stacy,
Several other requests dealt with the issue of insanity. An examination of the charge shows that the subject was amply covered, in accordance with the approved principles of our law and without exception being taken. The same is true of a request concerning the elements of self defense.
The indictment is abated and the judgment reversed. *419