State vs. Mazelda Keyes, 8 Vt. 57

■ The opinion of the court was delivered by Redjtield, J. The first question, in this case, arises upon the decision of the county court in overruling the motion to quash. That motion was made upon the ground, as we infer from the argument here, that this respondent being charged with an infamous crime, was entitled to insist upon á trial upon indictment.

In support of this position the counsel rely mainly upon the seventh of the articles proposed and adopted .in amendment of the constitution of the United States, which- is in these words : “No person shall be held to answer for a capital or otherwise infamous crime, _ unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger.” As these amendments were professedly proposed-and adopted with the expectation that they would define, limit and explain the provisions of the constitution, as originally reported by the convention, it is but reasonable that the amendments should be construed with a reference to the constitution.

There can be no doubt this 7th

article of amendment was adopted with reference to the 3d

article and 2d

section of the constitution. This

section provides for a national judiciary, but no where requires that one accused of crime shall be entitled to require a bill of indictment to be found by a grand jury, before submitting to trial for the alleged offence. The only limitation, as to the mode of trial, found in the constitution, is, that the accused shall be entitled to trial by' jury, (traverse jury of course) and that the trial shall be had within the state where the offence was committed, if committed within the limits of any state, and if not, then at such place as congress may by law have directed. This 7th

article of amendment provides, that in all capital or otherwise infamous crimes, the accused shall be entitled to the further safe guard of liberty or life or character, afforded by a grand jury. The 8th

article of these amendments states further limits, ■ and restricts the mode of trial for crimes, byproviding that the trial shall always be by a jury of the district where the offence is committed, which district shall have been previously defined by law. It could not well be doubted, that the provisions in the constitution, as first reported and the amendments, all have reference solely to trials in the courts of the United States. The phraseology clearly indicates this. In the first provision, trial by impeachment is excepted from the cases required to be tried by jury.

This most clearly points to those trials which the constitution provides shall be had before (he senate, on t.be motion and information of the house of representatives. In the

article of amendment alluded to and which is relied upon in this case, of-fences committed in the land and naval service are excepted. The phraseology adopted in both cases, clearly indicates, that the provision has reference only to proceedings in the tribunals of the United States. The same reasoning and conclusion has been adopted by this court in reference to that

article of amendment of the United States constitution which provides for trial by jury in civil actions — Huntington vs. Spooner’s trustee, 5 Vt. Rep. 189. And we see no good reason why the same decision should not be now adhered to. The language of the 12th

article of amendment thoroughly fortifies this construction. It provides that powers not delegated to the United States shall belong to and be exercised by the states. And although it be true that some of the provisions of the constitution of the United States are intended to be applied as well to the states as to the United States, such is not the fact in regard to its principal provisions. And we cannot presume that, but the contrary, to be the case, when the language of the instrument is general or equivocal. It might be added as a further reason why we should not be inclined to adopt the view presented by respondent’s counsel, and consider this

article of the United States constitution as extending to trials in the state courts, that the contemporaneous construction and subsequent practice has, in reference to this subject, been wholly at variance with any such determination. Petty larceny, which is now very generally admitted to be an infamous offence, is in all our cities tried before the police courts, where it is well known no grand jury attend. The same is true of trials for petit larceny in this state and many of the other states, before single magistrates.

And it has never been doubted that these convictions, upon information, were regular and valid. This consideration alone is entitled to great weight, as has been repeatedly held, both by the state and United States courts. But even if we could adopt this view of the case, we are not prepared to say that the offence attempted to be charged in this information, is in it character infamous. The old notion that infamy depended upon the nature of the punishment, is long since abandoned. But we get nothing in its stead, which is, on the whole, much more satisfactory. We find the books filled with general

definitions in abstract terms, which no man can pretend clearly to comprehend. Treason and felony, as at common law, are terjns sufficiently intelligible, but the term crimen falsi is one of most indefinite extension, and when Russell extends it to every falsehood, which affects the public administration of justice, it is certainly leaving so important a consequence to depend upon a very loose and unsatisfactory condition. Legal infamy, as a part of the punishment of crime, is by far the severest portion of the punishment, in most cases of conviction of an infamous offence.

It is important then, that the number of infamous crimes-, which on conviction shall induce legal infamy, should not be multiplied by construction. Those which are held to be infamous, as treason, felony, forgery, and perjury and bribery, should be clearly defined and well known. Some of the English decisions of late seem to have gone great lengths. The case of Bushell vs. Barrett, 21 Com. Law Rep. 483, expressly decides, that inducing one to absent himself from attending as a witness, in a question depending before justices in relation to offences against the revenue laws, was an infamous offence.

This is put upon the ground of its being an offence tending to hinder the due course of puhlic justice. An attempt even to induce a witness by threats or promises or any other means to disregard his obligation to attend as a witness upon the trial of a public prosecution, when the security of the public quiet and the purity of the fountains of public justice may be hazarded, is undoubtedly a high-handed offence, and as such should be severely punished.

But when it is recollected, that in the heat of zeal to save a friend, whom they may believe to be more innocent than the testimony would seem to admit,, men will sometimes be induced to go great lengths, and sometimes without much consideration, it is not perhaps best, that every attempt to'induce a witness, under such circumstances, to avoid being compelled'to attend even a public trial for felony, should be declared infamous. The decisions here have never as yet gone so-far, and we should certainly hesitate in following the recent English authorities.

Upon both grounds then, we think the motion to quash should^ have been overruled. But the respondent farther moved the court in arrest of judgment for the insufficiency of the information. It is said,- there having been no subpoena served upon the person,- he cannot be considered in- the light of a witness. But it will be difficult to-say, just when the peison will become so far a witness that it will be an offence to hinder him from giving his attendance upon the court. The essence of the offence is obstructing, the due course of justice.

This has always been held-indictable, as a misdemean- or, at common law.- Whether the witness had been served with a subpoena or not, cannot be esteemed' very material- The effect of the act and intent of the offender is the same, whether the witness has been or is about to be served with a subpoena, or is about to attend in obedience- to a voluntary promise. Any attempt, in either case, to hinder his attendance, is equally criminal and equally merits punishment. But in l-he case of the second count. this question does not properly arise.

It is there alleged that the witness had been recognized for his appearance at a former term as a witness in this case. It has been decided by the court, that such a recognizance, though not so expressed, imposes upon the connusee, whether respondent or witness, the obligation to attend from term to term, until the case is determined. It is said at bar, that the bonds of Howe had been estreated, and thus Keezer exhonorated from the obligation of his recognizance. This question cannot arise on a motion in arrest, or if it could, the indictment being good, the motion in arrest cannot prevail.

For in criminal proceedings on motion in arrest, if one count in the bill or information be good, it is sufficient, although the contrary rule prevails in civil suits. And in any view of the case, the offence was complete. The witness having once been improved before the justice and recognized for his appearance to testify on the final trial, cannot be presumed to be in doubt, whether his testimony would be required on the final trial.

Knowing this, it would be equally criminal in him corruptly to absent himself from the state or keep secreted, or in any other way avoid being summoned as a witness, whether his recognizance was or was not still in force. The question here is not whether the witness has been guilty of a contempt in. disobeying the process of the court, but whether there has been a corrupt attempt to obstruct the due course of public justice by “spiriting” away or preventing the attendance of a witness.

If the person induced to absent himself, knew of his being a witness and was induced to absent himself, the offence was complete in him. If the respondent knew of his being a witness and about to be compelled in due course of law to attend the trial, and endeavored to dissuade and hinder him therefrom, in the language of the indictment, his offence is complete. In this case, knowledge is carried home to both.

It will not do, for a moment, to admit that the respondent might anticipate the officers of justice, and secrete, bribe or intimidate the state witnesses from attending the trial of public prosecutions, and not be liable for any act done, until a subpoena had been legally served upon the witness. This view will leave untouched the most corrupting field for offences of this character. It is further argued that the information is insufficient, because it contains no allegation that the offence was consummated, but only an attempt to hinder the witness from attending the trial.

This question was formerly much discussad in Westminster Hall,.but is now well settled. L The case above cited from C. L. R. (Bushell vs. Barrett) shows that a conspiracy to bribe a witness, to induce him not give his attendance upon court, is held not only a high misdemean- or, but an infamous offence. And the doing of any act tending to obstruct the due course of public justice, has always been held indictable as a misdemeanor at common law. Bribing, intimidating or persuading a witness not to testify, or not to attend court, are each among the readiest and the most corrupting of this class of misdemeanors.

The mere intent to commit a misdemeanor, or even a felony, until evidenced by some act, is not indictable, for a very sufficient reason, that human tribunals cannot take any just cognizance of human thoughts or intentions, except so far as they are expressed in their actions; and except in times of flagrant misrule and tyranny, this has never been attempted. But it is well settled at common law, that an attempt or endeavor to commit a felony or misdemeanor, is punishable itself, as a substantive misdemeanor.

An attempt to bribe the first Lord of the treasury, to procure the reversion of the office of clerk of the supreme court of Jamaica, was in Lord Mansfield’s time held clearly indictable. —Box vs. Vaughn, 4 Burr 2494 See also Plympton’s cases, 28, Ray. 1377, and 1 Russell on Crimes 45, 46. It is equally well settled, that an endeavor to induce another to commit a felony or misdemeanor, is indictable as a common law offence. — Rex vs. Philips, 6 East. 464. The soliciting another to-embezzle his master’s money, rvas held clearly indictable. — Rex vs. Higgins, 2 East. 5 — See also the cases there cited.

In reason, a criminal intent and

an act in furtherance of the intent, whether success follow or not, is deserving of the same degree of punishment-, almost as if the principal offence had been consummated. Assaults with intent to murder or to commit rape, are by statute punished with great severity, as substantive offences. And we feel no hesitation in saying,, that the attempt to commit an offence or the soliciting another to commit an offence, should (with few exceptions not necessary to be enumerated here, resting upon peculiar grounds) be held indictable, as misdemeanors at common law.

This disposes of all the objections urged against the indictment. The respondent not being in court to receive sentence, the bonds, on motion of the state’s attorney, estreated.