The Waterbury Democrat., 1938-07-01

creed an accused lntO 0 confess sion and reported that to the states attorney and thereupon the states attorney had filed an information against that accused no one would seriously contend that, for that reason, the infor- nation should be quashed or the action abated. If a states attor- ney, himself, should procure such confession improperly, that would not be ground for quash- ing the information or abating the action. The states attorney is an officer of the court and just as much an arm of the court as is the grand jury.
 Where an indictment is neither required nor used as the basis for a prosecution an accused is not injured in the eyes of the law by the improper procuring of evi- dence against him until that evi- dence is admitted against him on the trial of the case. And any thing which the grand jury does or fails to do ought not to abate an action which in no sense de- pends for its existence on any conclusion reached by that grand jury.
 Jeopardy Claimed
 3. The third of the main grounds for abatement is various ly stated but amounts to the claim that inasmuch as the grand jury failed to return an indict- ment the states attorney could not proceed by way of informa- tion because that would constitute double jeopardy. It is indeed novel to suggest that the pro- ceedings before a grand jury con- stitute jeopardy. The most that grand jury may do is to return an indictment. There is no dan- ger that a grand jury will find a man guilty. That is not within It's province. Therefore no one is placed in jeopardy in grand jury proceeding. It is fundamental that the failure of one grand jury to indict does not prevent the same matter being again presen- ted to another grand jury and If one grand jury proceeding con- stituted jeopardy that would not be possible. The conclusion ar- rived at in 2 (g) above that this proceeding in no way depends upon any conclusion arrived at by the grand jury disposes of this ground for abatement.
 4. The fourth main ground for abatement relied upon is the broad claim that this proceeding was instituted merely upon the information of the special states attorney without any preliminary hearing. The contention is that the statute (Gen. St., Rev 1930 Sec. 6446) which authorizes the states attorney to file an orig inal information in the superior court without preliminary hear ing is unconstitutional because not due process of law.
 It Is of course fundamental that this court ought not to declare statute unconstitutional unless 1t is clearly so. It has been held by the Supreme Court of the United States that the institution of a criminal proceeding by the in- formation of states attorney at least in cases where provision is made for a preliminary hear ing is due process of law. Hurtado V California, 1l0 U. s. 5l6; 28 L.. Id. 232. And the fact that that in that case a preliminary hear ing was provided was not essen- tial to the reasoning of the opin- ion. The one thing which is es- sential apparently is that no man shall be arbitrarily and without any cause charged with crime.
 Reasonable Ground
 Under our procedure states attorney takes an oath of office. Under that oath he is precluded from acting arbitrarily. When, therefore, upon that oath of of- flee he makes information against an accused 1t means that he is not acting arbitrarily but after investigation and on reasonable ground. The investigation by the states attorney and the deter imitation by him that there is reasonable ground to proceed takes the place of a preliminary hearing by a magistrate and suf- ficiently fulfills all of the re- quirements of due process of law.
 So far as our own State Consti- tuition is concerned. The practice of filing original informations in the trial courts goes back as far as 1730 at least. State V Keena, GA Conn. PIP, 2l5. It was in vogue therefore at the adoption of the Constitution in 1913. The only provision of the Constitution bearing directly on the subject is the provision which requires an indictment of grand jury in cases where the punishment may be death or life imprisonment. Having provided that restriction on the power of the states at- torney to file original informa- tions and no other, 1t Is to be presumed that the Constitution does not intend to make any other restriction and that there fore the power of the states at torneys to file original informa- tions in all other cases Is recog- nized by the Constitution.
 5. The fifth main ground of the various pleas in abatement is that the character of the report of the grand jury and the public ity which 1t has had prevents fair trial. Assuming as we must for the purposes of the demurrer that this is true. nevertheless 1t is not a proper ground for abate- ment. A plea in abatement goes simply to the question as to whether the writ was lawfully is- sued, served and returned. Simply that 1t will be impossible to get an unbiased jury to try case has nothing to do with the ques- tion as to whether the informa- ton charging the crime Is valid z.. ..,A &i~~ u,n Iau haav,