In Re Morris

229 A.2d 244 (1967)

In re Winston MORRIS.

No. 1966.

Supreme Court of Vermont. Washington.

April 4, 1967.

Peter Forbes Langrock, Middlebury, for petitioner.

Alan W. Cheever, Asst. Atty. Gen., for the State.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

PER CURIAM.

The petitioner, advised by counsel entered a plea of guilty to charges of grand larceny and burglary. He was sentenced to the state's prison at Windsor, where he now is. He has applied for post conviction relief on the grounds that he was prosecuted on an information issued by the state's attorney on his oath of office alone. This, he says, violates both Chapter I, Article 11, of the Vermont Constitution, and the Fourth Amendment of the United States Constitution. It is his position that compliance requires that there be an accompanying affidavit, or a showing before a magistrate, demonstrating that facts are present constituting probable cause to charge a respondent. The lower court denied relief, and he is here on appeal.

This issue has already been resolved against the petitioner by In re Davis, 126 Vt. ___, 224 A.2d 905. The fact that preferable procedures may exist cannot turn this Court aside from its duty to say whether or not the one at issue meets constitutional standards. We must test for validity, not merit.

Moreover, this is an issue that must be timely raised. If it is to be charged that the grounds were insufficient to support the complaint, the question must be presented and preserved in the court trying the charge. State v. Intoxicating Liquor, *245 106 Vt. 340, 341, 175 A. 8. This is not accomplished by a mere plea of guilty to the accusation.

Judgment affirmed.