78 Vt. 124 | Vt. | 1905
The case against Stimpson is an information for statutory rape, and the' one against Dee is an information for grand larceny. The principal question in the former, and the only question in the latter, is, whether section 1867 of the Vt. Sts., as amended by No. 46, Acts of 1898, and No. 64, Acts of 1904, is constitutional. It provides that state’s ’attorneys may prosecute by information all crimes except those punishable by death or by imprisonment in the state prison for life. It is claimed that said section is in contravention of the declaration in the Constitution that no person can “be justly deprived of his liberty, except by the laws of the land, or the’judgment of his peers.” This claim is based upon the contention that the words, “laws of the land,” as there used, require prosecutions for common law felonies to be by indictment, because, it is said, those words as used in Magna Charta, from which we bor
As early as 1779, state’s attorneys were provided for, and authorized to prosecute, manage,’ and plead in all matters proper, for and in behalf of the State. Slade’s State Papers, 331. By an act passed November 10, 1797, it was made the duty of state’s attorneys to file informations ex-officio in matters proper therefor. Rev. Sts. 1797, c. 64, § 1.
By an act passed February 27, '1787, it was provided that no person should be held to trial nor put to plead for a capital offence punishable with death, unless a bill of indictment was found against him therefor by a grand jury lawfully empanelled and sworn. Sts. of 1787, p. 82. This was only ten years after the adoption of the Constitution, and indicates that thus early the Legislature thought that without such an enactment one might be prosecuted for a capital offence, even, .otherwise than by indictment; for it is not to be presumed that the Legislature thought it was passing a useless act. This provision was carried into the Revision of 1797, p. 106, § 65. By an act “for the punishment of certain capital and other high crimes and misdemeanors/’ passed March 9, 1797, it was provided that no person should be tried for any offence under said act, until a bill of indictment was found against him by the grand jurors attending the Supreme Court of Judicature. Revision of 1797, p1. 173,
The act of March 9, 1797, was reenacted in 1818 with some additions, but not with the addition of larceny, and the act repealed. But the provision in respect of prosecuting by indictment was retained — Acts of 1818, p. 19, § 37 — and continued in force till the Revision of 1839, unless it was changed by c. 9, § 1, of the Acts of 1819, constituting state’s attorneys “informing officers,” which is doubtful, although it is said in State v. Magoon, 61 Vt. at p. 47, 17 Atl. 729, that prosecution by information of all crimes was authorized by statute from 1819 to 1839.
The act of March 4, 1797, was reenacted in 1821, with an increased penalty for larceny, but was still silent as to the mode of prosecution, and continued so until the Revision 'of 1839.
Since 1816 it has been the law that when a person is confined in jail on a complaint for a crime or misdemeanor, the Supreme Court may, on his application in writing, direct an information to be filed against him, whereon the Court may receive and record a plea of guilty and award sentence.
In 1839 it was enacted that no person should be held to answer in any court for an alleged crime or offence, unless upon indictment by a grand jury, except in case of proceedings before a justice, and when a prosecution by information was expressly authorized by statute. Rev. Sts. c. 93, § 1. This
It was decided in State v. Leach, 77 Vt. 166, 59 Atl. 168, that statutory rape can be prosecuted by information. But the constitutionality of that mode of prosecuting was not raised nor considered, and the question has never been decided by this Court, nor raised in it but twice before; once in 1880, in State v. Haley, 52 Vt. 476, and again in 1888, in State v. Magoon, above cited; in both of which, strong judicial utterances were made in favor of the correctness of the long practical construction above shown. State v. Haley was an information for a liquor nuisance, a mere misdemeanor, and the respondent contended that the proceeding should have been by indictment. But the Court held otherwise, and said that the statute had always been supposed to mean that all crimes, except capital and those for which the punishment exceeded seven years in the state prison, might be prosecuted by information, without regard to any distinction between felonies and misdemeanors, and without regard to the punishment prescribed, provided -it did not exceed seven years in state prison, and was not capital, and that such had been the construction and uniform practice by all courts, judges, state’s attorneys, and lawyers down to that time. State v. Magoon was an information for grand larceny. The Court said that prosecutions by information for high crimes having been au
Thus it appears that during substantially the whole time since the adoption of the Constitution, the Legislature has practically construed the clause in question not to require common law felonies to be prosecuted by indictment; and this construction has been acquiesced in and accepted as correct by the courts, and with great unanimity by the-profession generally, many of the best of whom have revised the statutes from time to time, commencing with that great lawyer, Nathaniel Chipman, in 1797, who was prominently active in public affairs during the formative period of the Constitution, and must have been imbued with its spirit and meaning.
There is abundant authority for saying that after this long acquiescence in that construction it should not be departed from, but should be accepted as correct beyond the permissibility of question. In State v. Bosworth, 13 Vt. 402, 413, it is said that questions arising under the Constitution, settled by a long and uniform practice, questioned in the judicial tribunals but once, and then sanctioned, should be considered at rest. Where, the Court asked, is the security
In Lincoln v. Smith, 27 Vt. 328, 345, this Court adopted the language of the Supreme Court of the United States in Briscoe v. Bank of the Commonwealth of Kentucky, 11 Pet., at p. 318, that “a uniform action involving the right to the exercise of an important power by the state government for half a century, and this almost without question, is no unsatisfactory evidence that the power is rightly exercised.” In Stuart v. Laird, 1 Cranch, 299, it was objected that the Judges of the Supreme Court had no right to sit as circuit judges, not being appointed rtor commissioned as such. But the Court said that practice and acquiescence undfer it for several years, commencing with the organization of the judicial system, afforded ah irresistible answer to- the objection, and had fixed the construction; of the Constitution, which was too strong to be shaken or controlled.
There are many more cases to the same effect, but they need not be referred to. The subject is pretty fully treated in Cooley’s Const. L-im., 7th ed., 102 and following. See, also, Black, Int. Laws, 31; Lewis’s Suth. Stat. Const. § 476; Endlich Int. Sts. § 527. But the aids of contemporaneous and practical construction must be resorted to with caution and reserve, and can never be allowed to abrogate, contradict, enlarge, nor restrict the plain and obvious meaning of the text.
As to the true meaning of the words, “law of the land,” and “due process of law,” as used in the constitutions of our
The Supreme Court of the United States had this question under consideration in 1883, in Hurtardo v. California, 110 U. S. 516; and pretty much all that can be said on the subject was there brought out in the majority opinion by Mr. Justice Matthews, and in the dissenting opinion of Mr. Justice HARRAN.
The Constitution of California, adopted in 1879, provides that offences theretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law; and that a grand jury shall be summoned at least once a year in each county. By the Penal Code of the State, when a defendant has been examined and committed as thereby provided, it is the duty of the district attorney to inform against him for the offence. The plaintiff in error having been thus examined and committed for murder, the district attorney informed against him for that crime, and he was convicted and sentenced to death, and the question was whether that was “due process of law” within the meaning of the Fourteenth Amendment of the Federal Constituition, which forbids the states to “deprive any person of life, liberty, or property without due process of law,” and it was held that it was; that an indictment or a presentment by a grand jury as.known to the common law of England, is not essential to that “due process of law,” when applied to prosecutions for felonies, that is guaranteed by the. Federal Constitution, and forbidden to the states .to dispense with in the
The Supreme Court of Tennessee says, that “when first adopted in Magna Charta, the phrase, ‘law of the land/ had reference to the common and statute law then existing in England; and when embodied in our Constitution, it referred to the same common law as previously modified, and as far as suited to the wants and conditions of our people in a new country. At present, the ‘law of the land’ embraces the same body of laws as still further modified; those parts validly cut off being now excluded, and those parts validly added being now included. Every valid statute of the State now in existence, whenever enacted, is the present ‘law of the land’ in respect to the subject-matter of that statute, and every existing enactment passed with due form and ceremony and not in conflict with some provision of the State or Federal Constitution, is a valid statute; and no statute otherwise valid is •unconstitutional because affecting life, liberty, or property, if, when being general, it embraces all persons who are or may be in like situation and circumstances, or, when being special, it is, in addition, natural and reasonable in its classification.” Harbison v. Knoxville Iron Co., 103 Tenn. 421, 437, 76 Am. St. Rep. 682, affirmed in 183 U. S. 13.
The Supreme Court of Mississippi says in Brown v. Levee Commissioners, 50 Miss. 468, speaking of the words, “due process of law,” that “the principle does not demand that the laws existing at any point of time shall be irrepealable, nor that any forms of remedies shall necessarily continue. It refers to certain'fundamental rights which that system of jurisprudence, of which ours is a part, has always recognized. If any of these are disregarded in the proceedings by which a
The Constitution of Wisconsin originally declared that “no person shall be held to answer for a criminal offence, unless on presentment or indictment of a grand jury.” That clause was amended in 1870 so as to read, “no person shall be held to answer for a criminal offence without due process of law.” The statute of 1871 provided that the several courts of the State should possess, and might exercise, the same power and jurisdiction to try prosecutions on information for all crimes, as they possessed and might exercise in cases of like prosecution on indictment. Rowan v. State, 30 Wis. 129, was an information for murder, and the question was whether the amendment changed the meaning of the Constitution, or, in other words, whether “due process of law,” and, “on presentment or indictment of a grand jury,” meant the same thing, and it was held that they did not. The. Court said that the words, “due process of law,” did not mean, and had not the effect, to limit the powers of the State to prosecution of crime by indictment, but meant law in its regular course of administration according to prescribed forms and in accordance with the general rules for the prosecution of individual rights.
The Supreme Court of Texas says that when the words, “law of -the land,” were used in Magna Charta, they probably meant the established law of the kingdom in opposition to the Roman law, which was about being introduced into the land, but that now, in their most usual acceptation, they are regarded as meaning general public laws, binding all the members of the community in similar circumstances, and not partial or private laws, affecting the rights of private individuals. Janes v. Reynolds, 2 Tex. 250.
In Utah, the words, “due process of law,” are held to mean, law in 'the regular course of administration through the courts. In re McKee, 19 Utah 231, 242. Indiana holds the same. State v. Boswell, 104 Ind. 541.
It is said' in Hoke v. Henderson, 4 Dev. Law, 15 N. C. 1, 25 Am. Dec. pp. 688, 689, that the words, “law of the land,” do not mean merely an act of the General Assembly; for if they did, every restriction upon legislative authority would be at once abrogated. But that they mean that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property without trial before the judicial tribunals, and a decision upon the matter of right as determined by the laws under which it vested, according to the course, mode, and usages of the common law,— are not effectually laws of the land for those purposes.
Many of the other states adopt the view of the cases referred to, but some of them hold. the other way, notably Massachusetts in Jones v. Robbins, 8 Gray 329.
Mr. Stephen says in the first volume of his History of the Criminal Law of England, p. 595, that “from the earliest times, the King accused persons of offences not capital in his own court by the agency of his legal representatives without the intervention of a grand jury.”
Thus it appears that the practical construction that our Constitution has so long received in this respect accords with the prevailing opinion in this country, which we think the better opinion, and therefore we the more readily hold that our Constitution does not require common law felonies to be prosecuted by indictment, and that consequently the statute in question is constitutional.
In the rape case, it appeared that the girl consented in fact, but she could not consent in law, as she was under the age of consent. As bearing on her credibility as a witness, and as tending to show a motive to charge the respondent with the crime, the respondent offered to show by her on cross-examination that she was six or eight months gone with child, and was never pregnant before; and that ever since she was twelve years old, down to the time in question, she had had sexual intercourse with many different men. The State offered to admit her pregnancy, but objected to her being cross-examined as to her intercourse with other men. But the respondent did not want the admission of pregnancy unless he could cross-examine as to the intercourse, which was not permitted.
As a general -rule, particular acts of misconduct are not provable by extrinsic evidence. In this State, you cannot
State v. Hollenbeck, 67 Vt. 34, 30 Atl. 696, relied upon by the respondent as expressly deciding this question, is not in point. That was an indictment for rape simpliciter, and the woman was of the age of consent, as shown by the record in that case, and as is inferable from' the case as reported. In such a case, there is no doubt but the respondent has a legal right to cross-examine the complainant as to her intercourse with other men; not to shake her credit as a witness, but to show her consent, and so no rape. What is said in that case about allowing the cross-examination to be as unrestricted and searching as consistent with the rules of law, related to the refusal of the trial court to accord to the respondent his legal right to show by the complainant that her relations with him were friendly and cordial at the time of the alleged of-fence, and continued so afterwards. Whether in the case at bar the court could have allowed the cross-examination as matter of discretion, is a question not before us.
As to a motive to charge the respondent unjustly, the case as presented would afford no ground for such an inference had the claimed intercourse with other men been shown.
Judgment in Stimpson’s case that there is no error in the proceedings of the county court, and that the respondent take nothing by his exceptions; and judgment in Lee’s case that there is no error, and that sentence be imposed and execution thereof done.