State v. Butler

17 Vt. 145

• Court: Supreme Court of Vermont
• Decided: January 15, 1845
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

The motion to dismiss was correctly overruled for two reasons. 1. The statute provides, in terms, that, if the proper minute shall not be made, the proceeding “ shall, on motion, be dismissed —not that it shall be void, but shall, on motion, be dismissed, — thus making it matter of abatement, except as to the form of raising the question, which need not be by formal plea, but may be by motion. But it does, in other respects, partake of the nature of a plea in abatement, and, unless pleaded before the plea of the general issue, must be considered as waived. Such was the decision of this court in regard to the minute upon writs sued out to recover penalties, which is provided for in the very same section, and with precisely the same words, as in case of an indictment. 2. We do not perceive but there must be some time allowed for the making of this minute, — and we are not prepared, at this time to say that this court could adjudge this minute so informal as to time, as to be of no validity. But it is not necessary to spend much time upon this point.

In regard to the sufficiency of the indictment, the counts, which charge the respondent as accessory after the fact, cannot be maintained. This must be considered an indictment under the statute. As the statute has modified the common law offence, it must be considered as, thus far at least, having superseded it. And viewed as an indictment under the statute alone, it is impossible to sustain it. For the statute, in the body of the enacting clause, provides that the persons to be guilty of the offence shall not stand in certain specified relations to the principal offender, — that is, “Every person not standing in the relation of husband and wife, parent, or grand parent, child, or grand child, brother, or sister, to an offender.” It is not every person, but only those not standing in these relations; so that the quality is as necessary to be alleged in the indictment, as if the persons had been required to be of a good age, in order to be guilty of the offence; and in such cases the allegation of the quality, required in the person to commit the of-fence, must always be found in the indictment.

Where the exception is in a separate section of the statute, or in a proviso, or exception distinct from the enacting clause, it has always been esteemed matter of defence, and that it need not be alleged in the indictment; but if the exception was contained in the body of the enacting clause, it was in the nature of a condition precedent and must be alleged in pleading. Arch. Cr. Pl. 29. Spiers v. Parker, 1 T. R. 137. The King v. Pratten, 6 T. R. 559. The King v. Stone, 1 East 639. The King v. Earnshaw, 15 East 456. In the case of The King v. Stone, the court seem to have been equally divided upon the question whether it is incumbent upon the prosecutor to prove such negative exception. But, upon general principles, it would seem to be as necessary to give some proof of the exception, whether affirmative, or negative, as to allege it. And one can hardly forbear a smile at the simplicity of Mr. Justice Le Blanc, in the last case, who, ( when pushed by the argument of Lord Kenyon of the absurdity of requiring the allegation and dispensing with the proof,) supposes the allegation might be of some service to the defendant, in apprizing him of what “proof he must come prepared with ” in order to make his defence available. The rule, as laid down in Rex v. Rogers, 2 Campb. 654, seems to require the proof to support the allegation.

The remaining question raised, in regard to the sufficiency of the counts charging the respondent as accessory before the fact, it is •difficult to determine satisfactorily. If these counts„are to be considered as charging thé principals and .accessories all together, it may be well enough ; but it seems questionable whether the precedents will justify charging the principal and accessories both before and after the fact in the same count. This seems to me to be an indictment in two counts, in each of which the principals are charged in due form, and then the respondent is first charged as accessory before the fact, and then as accessory after the fact.

* I cannot say that, in principle, there is any very great objection to this course.; but in practice, I apprehend, it has not been usual to do more than to indict the principal and the accessory either before or after the fact in the same count, — and generally, not more than this is found in one indictment.

But, at all events, as the attempt to charge the respondent as accessory after the fact is defective, as we have seen, for another reason, it may be rejected as surplusage, and the indictment will then stand good against the principals and the respondent, as accessory before the fact, — which is the most common mode of indictment, in such case at common law. In this state, by statute, the accessory, either before or after the fact, may be indicted, convicted and punished “ either with the principal offender, or after his conviction,” (which was the case at common law,) “or he may be prosecuted and convicted of a substantive offence, whether the. principal offender shall or shall not have been convicted,” &c.

The respondent's bonds being called out, no formal judgment was entered upon the record.

The counsel on the part of the state, even, do not agree in regard to the •number of counts, —one calling it two counts, and the other four, while the «counsel for the respondent call it an indictment in six counts. Redfield, J,