explaining that "otherwise-thorough exchange with a defendant" satisfies Rule 11 where court "failed to specifically ask one of the prescribed questions but nonetheless had sufficient grounds for finding that the plea was voluntary"Summary of this case from In re Brown
Argued September 7, 1954.
Decided September 30, 1954.
Where there was a finding by the Trial Court after examination and hearing (Laws 1949, c. 314, as amended) that the defendant, who was charged in a complaint with a sex offense, was not a sexual psychopath, he may not over his objection be subjected to a second psychiatric examination following a subsequent indictment for a different sex crime with the same person in the absence of facts or evidence differing from or in addition to those presented at such hearing.
In the event of defendant's conviction, in such case, under the sex crime indictment he may not then take advantage of his failure to submit to such examination.
PETITION, under Laws 1949, c. 314, as amended by Laws 1953, c. 114, to determine whether Herbert L. Moore is a sexual psychopath as defined in s. 2 of the act. Upon the defendant's motion to dismiss on the grounds that the matter was res judicata, the case was transferred without a ruling. It appears that the defendant was arrested and arraigned in the municipal court in August, 1953, on a misdemeanor complaint for the offense of gross lewdness and lascivious behavior on July 23, 1953. Thereupon the solicitor filed a petition under c. 314, supra, as amended, to determine whether the defendant was a sexual psychopath within the meaning of the statute. A medical board duly appointed found him to be a sexual psychopath, but the Superior Court at a hearing in October, 1953, found that he was not a sexual psychopath. At this hearing the solicitor introduced evidence tending to prove not only the facts as to the misdemeanor charge but also evidence of other lascivious and unnatural acts. After the finding by the Court the misdemeanor charge was nol-prossed, but on February 9, 1954, the grand jury returned an indictment against the defendant charging him with an unnatural and lascivious act allegedly committed "in or about the month of May, 1953," under R. L., c. 449, s. 9, this offense being a felony. Thereafter the defendant was arraigned and his attorney filed a motion to dismiss the petition because "the matter is res adjudicata." The county solicitor stated that he had no objection to the granting of this motion but that he filed the petition because of the requirements of the statute. Further facts appear in the opinion. Transferred by Sullivan, J., without ruling.
Louis C. Wyman, Attorney General, Richard C. Duncan, Assistant Attorney General, and John M. Brant, county solicitor (Mr. Duncan orally), for the State.
McCabe Fisher (Mr. Fisher orally), for the defendant.
The test to determine whether the defendant's motion to dismiss the petition should be granted because the matter is res judicata is to inquire whether the issue now raised was decided at the hearing held before the Superior Court in October, 1953. Laconia Nat. Bank v. Lavallee, 96 N.H. 353. The State argues that it was not because the prior adjudication was "made in a separate proceeding in relation to an alleged crime other than the one for which the [defendant] is now under indictment. . . ." It is true that the alleged crime which resulted in the prior petition and hearing is a different one from the offense upon which the present petition is founded, the original complaint being that the defendant was guilty of "gross lewdness and lascivious behavior" on July 23, 1953, while the present indictment is that he was guilty of an "unnatural and lascivious act . . . in or about the month of May, 1953." It thus appears we have here proceedings between the same parties but based upon a different cause of action. In this situation only the matters directly in issue at the October, 1953, hearing are now res judicata. Laconia Nat. Bank v. Lavallee, 96 N.H. 353, 355, and authorities cited. The State argues that the issue then decided was whether the defendant was on July 23, 1953, or upon the date of the hearing a sexual psychopath, while the question now is whether the defendant "is or is not, add whether he was, in May, 1953, a sexual psychopath. . . ."
The order of October, 1953, determined that the defendant was not then a sexual psychopath. S. 5 V. The reserved case states with reference to the proposed hearing on the present petition that "The state has no further evidence nor does it allege any further facts other than what was presented to the court in October, 1953, hearing," when the defendant was found not to be a sexual psychopath. Were additional facts alleged or was it suggested that other evidence was to be offered, we would have a very different situation. However that is not the case here. The proposal in effect is to force the defendant to submit to a second examination and hearing to decide if he is a sexual psychopath upon the identical facts which the Court, at a hearing at which no exceptions were taken, has found proved he was not a sexual psychopath. Were this procedure to become law no reasons appear why a person could not be compelled in such cases to submit to the harassment of repeated hearings on the same evidence because the State hoped to reverse a prior valid adjudication. It is fundamental that wherever possible, a statute will not be construed so as to lead to oppressive or absurd consequences. Glover v. Baker, 76 N.H. 393, 413. We believe to so interpret the act as to require a second hearing on the same evidence would be unreasonable and therefore not within the legislative intent. State v. Richardson, 92 N.H. 178.
Since to order a second examination and hearing against the defendant's objection would be unlawful, he can take no advantage later of the failure to do so in the event of his conviction under the pending indictment. Considering the position he has voluntarily taken here this is entirely just. See State v. Ellard, 95 N.H. 217, 222. The order is