Summary
In State v. La Palme, 104 N.H. 97, 179 A.2d 284, the Supreme Court of New Hampshire held that after a finding of guilty and release on bail the defendant was still in the constructive custody of the court and could not be heard to complain of an order of the court that he be fingerprinted.
Summary of this case from Gage v. StateOpinion
No. 5017.
Argued February 6, 1962.
Decided March 22, 1962.
1. A motion by the State to remand a case transferred to the Supreme Court from a municipal court for failure of the moving party to either file a brief or present an oral argument was denied because of the statutory provision (RSA 490:13) that no case shall be dismissed for want of a brief.
2. However, the practice of a moving party of not filing a brief or to present an oral argument in transfers from lower courts will be discouraged and corrected by the Supreme Court under its power to exercise general superintendence of the judicial process within the state (RSA 490:4).
3. A police officer may properly prosecute misdemeanors before the municipal courts.
4. A complaint charging the respondent with cruelty to animals (RSA 575:1) which clearly informed him of the date, place and manner in which he subjected cattle in his custody, control and care to unnecessary torture, suffering and cruelty satisfied the constitutional requirements of sufficiency (Const., Pt. I, Art. 15th).
5. A respondent released on bail after having been found guilty under a criminal complaint is constructively in the custody of the law and may be required to submit to fingerprinting and photographing.
Transfer of questions of law to the Supreme Court by the Amherst municipal court (Charles J. Lincoln, justice) under the provisions of RSA 502:24. The defendant was found guilty under a criminal complaint charging him with cruelty to animals (RSA 575:1) and released on bail. The defendant excepted to the ruling of the municipal court permitting a State Police officer to prosecute the case, to testify and to present evidence through other witnesses. The defendant also moved to dismiss the complaint as not being complete, adequate and sufficient. Both of these motions were denied, and the defendant's exceptions transferred to this court.
The court also transferred without ruling the question whether it had power to order the defendant's fingerprints to be taken after a finding of guilty and the posting of bail.
The material portions of the complaint read as follows: ". . . did willfully and knowingly permit two cows in his custody, control and care: namely tag #L118493 six-year old brown and white short hair female who was pregnant, and tag #A34050 a brown and white two-year old female, to be subjected to unnecessary torture, suffering and cruelty, in that he did deprive said animals of necessary sustenance, shelter and water, in consequence of which said animals are emaciated, dehydrated, undernourished and in poor health and condition, and were exposed to disease from the carcass of a deceased and unburied heifer. . . ."
After the case was filed in this court, the defendant indicated that he was neither filing a brief nor presenting an oral argument. Thereupon the State moved that the case be remanded to the municipal court for the failure of the defendant to support his exceptions in the Supreme Court. The defendant filed an answer to the motion to remand but did not file any brief or present any oral argument in support of his exceptions taken below.
William Maynard, Attorney General, and Irma A. Matthews, Law Assistant (Mrs. Matthews orally), for the State.
Albert J. Lemieux for the defendant, furnished no brief.
The motion of the State to remand the case for the failure of the defendant to file a brief or present an oral argument is directed at a practice which has been occasionally condoned, recently criticized (State v. Hazzard, decided this day, 104 N.H. 94) and never commended. Rockinghamc. Co. v. Batchelder, 73 N.H. 607; Musgrove v. Parker, 84 N.H. 550, 552; Bell Shops, Inc. v. Rosenblatt, 98 N.H. 162, 163. In view of the provisions of RSA 490:13 that "no case shall be dismissed for want of a brief" the motion to remand is denied, but as indicated in the Hazzard case, supra, this is a practice which will be discouraged in the future and if necessary corrected by the court under its power to exercise general superintendence of the judicial process within the state. RSA 490:4; State v. Murray, 104 N.H. 38.
The defendant's motion to dismiss on the ground that a State Police officer was permitted to prosecute and also testify as a witness is denied. This question was decided adversely to the defendant in State v. Urban, 98 N.H. 346. Furthermore, the statute under which the defendant was prosecuted specifically provides that it is the duty of ". . . police officers to prosecute violations of the provisions of this chapter." RSA 575:13. See also, Third Report N.H. Judicial Council, pp. 20-32 (1950). The prosecution of misdemeanors by police officers is a practice that has continued in one form or another since 1791 and is still permissible under existing statutes. State v. Urban, supra; RSA 575:13. See State v. Swift, 101 N.H. 340.
The defendant's exception pertaining to the validity of the complaint is overruled. State v. Farwell, 102 N.H. 3, 4. The complaint clearly and sufficiently informs the defendant of the date, place and manner in which he subjected cattle in his custody, control and care to unnecessary torture, suffering and cruelty. The contention that the complaint is vague and insufficient is without merit. N.H. Const., Part I, Art. 15th.
The defendant's contention that because he is on bail he is a free man and cannot be required to submit to fingerprinting finds no support in our law. While the defendant is at large on bail he is still constructively in the custody of the law and may be fingerprinted or photographed. 8 Wigmore, Evidence (McNaughton rev. 1961) s. 2265(1); RSA ch. 593; 4 Wharton's Criminal Law and Procedure, s. 1822 (1957); Shannon v. State, 207 Ark. 658. The power of a State Police officer to take fingerprints has not been doubtful since Laws 1937, c. 134; RSA 106:14; RSA 106-B:13 (supp); Laws 1961, 166:4.
The State's motion to remand is denied; the defendant's exceptions are overruled; and the question transferred without ruling is answered in the affirmative.
Case discharged.
All concurred.