In re Dexter

Miles, J. The relator was acquitted by a jury on the charge of murder, and the case was brought to this Court on exceptions by the State before judgment, pursuant to G. L. 2598. After a full hearing certain of the exceptions were sustained, the verdict was set aside, and the cause remanded for a new trial. Error was found in the exclusion of certain evidence, and in the conduct of respondent’s counsel in repeating a question after the same had been excluded by the court. It was not found necessary to decide whether the former, error was sufficiently harmful to require a reversal, as it was found that the latter clearly constituted harmful and reversible error. See State v. Felch, 92 Vt. 477, 105 Atl. 23. The relator’s argument in support of the complaint assumes that the only error on which the reversal can be predicated relates to the conduct of her counsel at the trial. Her claim is that this Court did not have jurisdiction to order the remand, for that by G. L. 2598, it can hear and determine only questions of law decided against the State by the trial court; and that the exception on which the case was reversed was not within the purview of the statute, as it was not to the decision of the court but to the conduct of counsel. Granting for the sake of the argument, though by no means conceding, that the sole basis of the reversal was as the relator assumes, we come to the consideration of the various claims advanced by the relator why her complaint should be sustained. Eelator’s counsel recognizes the limitations of these proceedings (as to which see In re Turner, 92 Vt. 210, 214, 102 Atl. 943), and rely solely upon the claim that this Court was without jurisdiction in State v. Felch to render judgment setting the verdict- aside and remanding the cause for a new trial on the exception to the conduct of counsel. But this proceeding calls that judgment in question collaterally, and it is well settled that the writ of habeas corpus cannot be given the effect of a writ for the correction of errors or irregularities. In re Turner, supra; In re Fitton, 68 Vt. 297, 300, 35 Atl. 319. Manifestly the — 311 — judgment of a court of last resort cannot be attacked by this writ, for a single justice of this Court; the county court, or a superior judge are given jurisdiction of the writ; and, if open to such attack, we would have the absurdity of an inferior court sitting in review of the judgment of a court of last resort. It belongs exclusively to this Court to examine into and decide upon the regularity of its own proceedings, which it will always do on proper application. See Walbridge v. Hall, 3 Vt. 114. The relator’s claim that the jurisdiction of this Court is not general, but special and limited, cannot be sustained. It has plenary jurisdiction as a court of error when its jurisdiction is properly invoked, with full power to try and determine questions brought before it “pursuant to law.” G. L. 1578. Its jurisdiction is in no way modified or controlled 'by anything contained in G. L. 2598. That statute prescribes in what case the State may have exceptions, and, if an exception is taken and allowed without right, it would be a fatal objection to the exception, if properly raised and presented in this Court. But the objection does not go to the Court’s jurisdiction. If the question is brought up on a proper bill of exception, viz., “pursuant to law, ’ ’ the Court has jurisdiction to decide the merits of the exception. Manifestly, it would have authority to overrule the exception; and by the same token, if it erroneously sustained the exception, it would not act without jurisdiction. In State v. Felch the jurisdiction of this Court was invoked in a legal manner. Confessedly certain of the questions raised by the State’s exceptions were brought before the Court “pursuant to law.” Though the validity of the verdict was challenged on several grounds, the subject-matter of the proceeding in error was single and entire, viz., the verdict which it was; sought to set aside. See Kramer v. Toledo, etc., R. R. Co., 53 Ohio St. 436, 42 N. E. 252. No question was then made that the exception now challenged was not properly before the Court for consideration equally with the .others; indeed, it was argued by both sides. By hearing and deciding the question thus pre>sented, the Court took jurisdiction of it. Jurisdiction thus assumed will be presumed and is not open to collateral attack. Necessarily the court of last resort must be the exclusive judge of its own jurisdiction. 15 C. J. 1026, § 445; The judgment of such a court is never void, but is regular for every purpose until set aside by it in some proper proceeding for that purpose.. Wal — 312 — bridge v. Hall, supra. It was held in Hathaway v. Holmes, 1 Vt. 405, 418, that the judgment of a court of record, acting within its jurisdiction, is conclusive until set aside by error or other proper proceeding; and it cannot be vacated, nor its merits examined into, on habeas corpus. Nor can we agree with the relator’s contention that the point on which the case was reversed did not involve a ruling of law against the State. This depends upon the construction to be given the statute. It is urged on the one hand that the statute is in derogation of the common law, and should be construed strictly, while on the other hand it is said that it is remedial, and so entitled to a liberal construction. It is an established principle that the rules of the common law are not to be changed by doubtful implications, nor overturned except by clear and unambiguous language (State v. Shaw, 73 Vt. 149, 171, 50 Atl. 863); and the rule is equally well established that remedial statutes are to be construed liberally to effectuate their purpose. State v. C. V. Ry. Co., 81 Vt. 459, 71 Atl. 193, 21 L. R. A. (N. S.) 949. The relator takes the anomalous position that, 'if the statute is remedial (and so within the latter rule), nevertheless it is to be strictly construed because it is in derogation of the common law. But l’ightly understood there is no conflict between these rules of construction. A remedial statute asserted as modifying the rule of the common law must receive a -strict construction on the question whether it does modify it; but if found, when so regarded, that it was intended to replace a common-law rule, in whole or in part, it must be given the same effect by liberal construction as it would -otherwise have. See Archer v. Equit. Life Assur. Assn., 218 N. Y. 18, 112 N. E. 433. That the statute in question modifies the common law will at once be conceded, and that it is remedial in character is quite apparent. A remedial statute is one designed to cure a mischief or remedy a defect in existing laws (City of Montpelier v. Senter, 72 Vt. 112, 114, 47 Atl. 392); and a statute for the correction of errors is of this character. White County v. Key, 30 Ark. 603, 36 Cyc. 1173. Plainly enough the Legislature acted upon the belief that the rule of the common law which denied the State exceptions in criminal cases was mischievous — was a defect in criminal procedure for which a remedy was demanded. It follows that the construction of the statute should be liberal and, within its language, commensurate with its purpose. — 313 — The section in question, in substance, provides that questions of law decided against the State by the court in criminal trials shall, upon exceptions taken by the State, be allowed and placed upon the record before final judgment; that when so taken and allowed' the trial court may, in its discretion, pass the same to this Court before final judgment, and that this Court shall hear and determine the questions raised upon such exceptions, and render final judgment thereon, or remand the case for further trial or other proceedings as justice and the state of the case may require. In construing the statute in case of State v. Felch, we took occasion to say that the Legislature intended to provide a right of exception to the State equal in all respects to that possessed by the respondent; and held that the terms of the statute, rightly understood, authorize exceptions by the State reserving all questions arising during the course of the trial. Such being the purpose of the statute, it is evident that questions of law decided against the State are not confined to express decisions of this character, but may be either express or implied. Such is the interpretation given to the statute providing for review of trial errors on exception in civil cases and on exceptions by the respondent in criminal trials. This question has frequently arisen on exceptions to misconduct of counsel in argument. The following comparatively recent cases" sufficiently illustrate the rule and its application. Russ v. Good, 90 Vt. 236, 97 Atl. 987; State v. Shaw, 89 Vt. 121, 94 Atl. 434, L. R. A. 1915 F, 1087; Green v. LaClair, 89 Vt. 346, 95 Atl. 499; Fadden v. McKinney, 87 Vt. 316, 89 Atl. 351; Citizens Savings Bank v. Fitchburg Fire Ins. Co., 86 Vt. 267, 84 Atl. 970; Davis v. Randall, 85 Vt. 70, 81 Atl. 250; Fowlie’s Admx. v. McDonald, Cutler & Co., 85 Vt. 438, 82 Atl. 677; Cunningham v. Bradford Agr. & Trot. Assn., 84 Vt. 35, 77 Atl. 913; Herrick v. Town of Holland, 83 Vt. 502, 77 Atl. 6; McDuffee’s Admr. v. B. & M. R. R., 81 Vt. 52, 69 Atl. 124, 130 Am. St. Rep. 1019; Douglass v. Carr, 80 Vt. 392, 67 Atl. 1089; Sears v. Duling, 79 Vt. 334, 65 Atl. 90; Magoon v. B. & M. R. R., 67 Vt. 177, 31 Atl. 156; Cutler & Martin v. Skeels, 69 Vt. 154, 37 Atl. 228; Smith Woolen Mch. Co. v. Holden, 73 Vt. 396, 51 Atl. 2. Rudd v. Rounds, 64 Vt. 432, 25 Atl. 438, cited in State v. Felch, is full authority for applying the rule to the misconduct of counsel in the latter case. It comes to this: The allowance of the exception in question amounted to an implied — 314 — ruling that the repetition of the question was legally proper, and was tantamount to an express ruling to that effect. The complaint, then, is not sustained. But it does not follow that the relator is to be remanded to her former custody. By the express provisions of G. L. 2236, the question of admitting her to bail necessarily arises. This question, therefore, remains for consideration. The record shows that on the remand of the case against her from this Court for a new trial, she (then being on bail) appeared before the county court; whereupon she was by that court ordered into the custody of the sheriff of the county, and the clerk thereof was ordered to issue a warrant for her commitment to the keeper of the county jail; that such warrant was. issued, and pursuant thereto she was committed to jail on December. 3, 1918, and hitherto has been therein confined by virtue of said warrant. The order for her commitment being thus made, she filed a motion in that court, among other things, for admission to bail. This motion was denied as matter of law, to which the relator excepted, and the exception was ordered to-lie. It hardly need be stated that we cannot review that ruling in these proceedings, but reference may properly be made thereto as showing the circumstances surrounding .her at the time of bringing her complaint. ■ The Constitution of the State (Ch. II, § 32) provides that “‘all prisoners, unless in execution, or committed for capital offences, when the proof is evident or presumption great, shall be bailable by sufficient sureties. ’ ’ And the statute relating tohabeas corpus (G. L. 2236) provides that, if the prisoner is detained for a bailable cause or offence, the court or magistrate-before whom the proceedings are heard shall admit him to bail, if a sufficient amount thereof is offered, and, if not, shall remand him with an order fixing the sum in which he shall be held to-bail, and the court at which he shall be required to appear; and a judge of the county court in the county where he is confined may, before the sitting of said court, admit him to bail pursuant to such order. It is seen that a prisoner charged with any offence, unless-in execution, or for a capital offence when the proof is evident or presumption great, is bailable as a matter of law; and also-when the offence charged is capital, unless the proof is evident or presumption is great. This provision of-the Constitution is; — 315 — to be interpreted in the light of the common law. United States v. Wong Kim Ark., 169 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. 456. At common law a person accused or indicted of any felony whatsoever was bailable in the discretion of the court, upon good sureties, until he was convicted. In re Commolli, 78 Vt. 337, 63 Atl. 184. It should seem from the foregoing that even where the offence charged by indictment is a capital one, and the proof evident or presumption great, the prisoner may be admitted to bail in the discretion of the court having jurisdiction of the question; but in this connection it should be stated that the discretion to be exercised by a court of justice is not an arbitrary, but a sound, judicial discretion, controlled by certain and well defined and established rules. Ordinarily, in practice, bail is refused after indictment found, in capital eases, where the proof of guilt is evident or presumption great; but we are not called upon to define more particularly the practice or controlling features in such cases generally; for here a trial by jury was had, evidence produced on both sides, resulting in a verdict of acquittal, though because of error in the trial, as decided by this Court on the State’s exceptions, it proved to be a mistrial. Such a mistrial is to be considered as a circumstance extraordinary in character, which is of much force in determining whether she shall be admitted to bail. It is generally considered as sufficiently favorable to the accused to warrant the court, in the exercise of sound discretion, in admitting a prisoner to bail, and we so consider it in this case. Had the county court exercised its discretion in determining the question, very likely we should leave the matter as there determined, let it be either way, without further consideration. But the court did not so dispose of the question. It decided against the relator as a' matter of law. This it could not lawfully do. The relator was entitled to the benefit of the court’s judicial discretion, and it not being accorded her, she was deprived of her right in that behalf. Because of this, and pursuant to the provisions of the statute above noticed, the prisoner %vill be admitted to bail if a sufficient amount thereof is offered with sufficient sureties. Such bail not being offered here, the prisoner is remanded to her former custody, with an order that she be held to bail in the sum of five thousand dollars, with two or more good and sufficient sureties, — 316 — the recognizance or bond to be conditioned as provided by laiv in criminal cases pending in cotmty court, for her personal appearance before the county cowl next to be held) al Chelsea in the County of Orange, on the first Tuesday of June, 1919, and from term to term thereafter, to answer to the indictment there pending against her for the crime of mwder, in accordance ivith the law in such case made and provided, to be admitted to bail as aforesaid, pursuant to the provisions of section 2236 of the General Laivs of the State.