State v. Clancy , 56 Vt. 698 ( 1884 )

The opinion of the conrt was delivered by

Royoe, Ch. J.

The statute, upon which this information is based, s. 1661 R. L., provides that if a person legally summoned as a witness to attend before any conrt in this State to testify in a criminal canse wilfully or wrongfully refuses to attend and testify, he shall be fined not more than one hundred dollars nor less than ten dollars, or may be imprisoned not exceeding six months, or be subject to both of said penalties, in the discretion of the conrt.

In order to subject a person to the penalties specified in that section, it must be alleged in the indictment ori nformation that there was a criminal cause pending or to be pending in some court, in which he was reqnired to testify. The only allegation in this information as to there being any such cause, is, that the respondent was duly summoned to appear before the grand jury at the time and place named, to give evidence of what lie knew in relation to all matters of complaint pending and to be investigated before said grand jury. That allegation is too uncertain and indefinite.

The cause in which the witness is summoned to testify should be so described that the court may be able to decide whether it is a criminal cause, and so within the statute. The allegation that he was to give evidence of what he knew in relation to all matters to be investigated by the grand jury is not, in legal effect, an allegation that any criminal cause was to be investigated by the grand jury. Neither is it alleged that the grand jury would be in session at the time when he was summoned to appear before them. It must be alleged, that the subpoena was signed by someone having lawful authority to sign it, and that it was legally served. The allegation as to the service is, that the respondent was duly summoned by a then deputy sheriff, naming him. It is not alleged, that the officer who served the subpoena had the lawful right to serve it, or in what manner the service was made. Sec. 1014, R. L., prescribes the legalmanner of serving subpoenas ; and in a criminal prosecution for refusing to obey a subpoena, it must be alleged and proved that it was served in the manner there prescribed. The manner of the service should be alleged with particularity, so that it may be determined as a matter of law whether the person charged with the crime was legally summoned or not.

While it is true, that an information or indictment based upon a statute must follow the words of the statute, and state all the circumstances enumerated in it in defining the offense, it frequently happens that such a description is notin itself sufficiently minute and specific. State v. Benjamin, 49 Vt. 101. It is elementary in criminal pleading, that all the facts which constitute a crime must bo directly alleged; and the want of such allegations cannot be supplied by implication or inference. But here the words of the statute were not followed; the word “ duly ” was substituted for “ legally.” The two words are not synonymous ; and the one is not the equivalent of the other.

Some other questions were presented in argument; but it is not necessary for the disposition of the case that they should be decided. We hold that the information is fatally defective; and the'judgment overruling the demurrer is reversed, demurrer sustained, and information adjudged insufficient.