Opinion
No. 5015.
Argued February 6, 1962.
Decided March 22, 1962.
1. Rules 6 and 7 of the Supreme Court prescribing the time within which briefs shall be filed and the session at which it will be in order for oral argument contemplate the filing of briefs, and the Court disapproves of the practice of an appellant or the moving party of failing to file a brief or to present an oral argument.
2. A complaint for operating a motor vehicle in a grossly careless and grossly negligent manner (RSA 262:15-a (supp)) phrased in the language of the statute and which described the manner in which the vehicle was operated was sufficiently definite and detailed to inform the respondent of the grossly negligent acts with which he was charged so that he could properly prepare a defense.
Transfer of a question of law to the Supreme Court by the Durham municipal court (Bradford W. McIntire, justice') under the provisions of RSA 502:24. The defendant moved to dismiss the criminal complaint against him for the misdemeanor of operating a motor vehicle in a grossly negligent manner (RSA 262:15-a (supp)) on the grounds that it did not describe the offense fully and plainly and did not allege any overt act of negligence. This motion, made at the close of the State's evidence, was denied and the defendant's exception thereto was transferred to this court.
The pertinent part of the complaint alleges that the defendant ". . . did upon a certain public highway, to wit, U.S. 4, in a westerly direction, operate a certain motor vehicle, to wit, a 1959 Austin-Sprite, bearing New Hampshire registration number RL 334, in a grossly careless and grossly negligent manner in that the said Russell Hazzard did operate said motor vehicle to the left of said highway and into the east bound lane in order to pass the motor vehicle in front of him and while doing so did collide with said motor vehicle, to wit, a 1953 Willys, New Hampshire registration number KH 945. . . ."
Counsel for the defendant advised the Clerk of the Supreme Court that he was filing no brief and presenting no oral argument. Thereupon the State filed a motion in this court to remand the case to the municipal court. This motion was argued orally and by brief by the State together with its argument upon the validity of the complaint. No argument or brief was submitted by the defendant's counsel on either the motion to remand or the validity of the complaint.
William Maynard, Attorney General, and William J. O'Neil, Assistant Attorney General (Mr. O'Neil orally), for the State.
T. Casey Moher for the defendant, furnished no brief.
We first consider the State's contention that the defendant's failure to submit a brief or an oral argument in support of his exception to the validity of the criminal complaint is an abuse of judicial process. It is argued that such failure is dilatory in nature, may in some instances be frivolous, places an unreasonable burden on State's counsel and "is not conducive to improving the proper administration of justice." One obvious remedy for this judicial malady is to fall back on the familiar rubric that an exception taken in the lower court which is neither briefed nor argued is deemed to be waived. State v. Bass, 93 N.H. 172, 177; Field v. Smith, 62 N.H. 698. But this is a blunt tool in the appellate process and is not always satisfactory or satisfying in criminal cases. Cf. Pound, Appellate Procedure in Civil Cases, pp. 198-209 (1941); V Pound, Jurisprudence, pp. 633, 641 (1959). This court has always taken a dim view of appeals and transfers from lower courts in which the appellant or the moving party neglects to file a brief or present an argument. Rockingham c. 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. The rules of the Supreme Court in effect January 1, 1961 (Rules 6 and 7) assume that briefs will be filed. The use of the original transcript and the elimination of the requirement of printed briefs (Rules 4 and 6) are aimed at making the appellate proceedings as inexpensive and expeditious as possible. RSA ch. 490 (supp) Appendix. These are added reasons why counsel have little excuse for not filing a typewritten brief which would at least supply some authority or citation for the position they have taken in their appeal or transferred case.
RSA 490:13 reads as follows: "BRIEFS. Each party who desires to be heard shall furnish to each of the justices, to each of the opposing counsel, to the state reporter and to the state library a brief of the points and authorities upon which he relies; but no case shall be dismissed for want of a brief." It is suggested that this statute is ambiguous in that it requires briefs and at the same time provides that ". . . no case shall be dismissed for want of a brief." The State argues that this statute should be construed to mean that no case shall be dismissed for the failure of an appellee to file a brief but not for the appellant to file one. This construction is ingenious but not convincing. It has never been so interpreted since its amendment by Laws 1872, c. 21, s. 2 and we find no basis to so interpret it now. Kibbee v. Kibbee, 99 N.H. 215.
The failure of counsel for an appellant or the moving party in a transferred case to file briefs is a relatively rare exception and has not been a serious problem in this jurisdiction. We expect to see less of this in the future but if this prediction proves to be too optimistic, we are prepared to deal with the problem effectively not only generally but on a case-to-case basis as it arises. RSA 490:4; State v. Knowlton, 102 N.H. 221; Orfield, Criminal Appeals in America, c. VII (1939).
The motion to remand this case to the municipal court for failure to brief or argue in this court is denied and in this case, as in Musgrove v. Parker, 84 N.H. 550, 552, we proceed to the merits of the question transferred.
The complaint in this case for operating a motor vehicle in a grossly careless and grossly negligent manner (RSA 262:15-a (supp)) is not phrased in terms of the statute alone but describes the manner in which the vehicle was operated. State v. Beauvais, 102 N.H. 276; State v. Turgeon, 101 N.H. 300, 303. The evidence is not before us because there is no transcript of the hearing in the municipal court. However the complaint was definite and detailed enough to enable the defendant to know what acts constituted the grossly negligent operation with which he was charged and to allow him to properly prepare a defense. State v. Dodge, 103 N.H. 131. See motor vehicle form 12, Law Enforcement Manual, New Hampshire (1st ed. 1959) pp. 129, 130. This is not a complaint which uses statutory language but omits allegations of definite overt acts constituting the offense. State v. Gilbert, 89 N.H. 134, 136. The complaint is sufficient and valid. See State v. Davis, 99 N.H. 88, 89; Fisher, Vehicle Traffic Law, pp. 337-344 (1961).
Motion to remand denied; defendant's exception overruled.
All concurred.