93 Vt. 142 | Vt. | 1919
This is an information in two counts, charging the respondent in the first count with statutory rape and in the second count with an assault with an intent to commit rape. The exceptions refer to the transcript and make the same controlling, but we have not been furnished with it, and have only such portions of it as are furnished by the stenographer under the rules of the county court.
The first exception briefed by the respondent is to a ques
The prosecutrix was further asked by the State’s attorney, ■what the respondent said to her on a certain occasion, to which she replied: “ITe told me he ivas going to take me and the woman on the hill. I asked him who it -was, and he said it was Helen. He was going to take her and I, and leave my mother and the children, and take me to Canada or Florida, and I was going to stay with him and do as he told me.” After the answer was given, respondent’s counsel said: “We object to that, and ask to have it stricken out, it has nothing to do with the case. ’ ’ The court ruled that it might stand, and gave the respondent an exception. The answer was responsive to the question, and the objection and exception were too late and unavailing. State v. Fitzgerald, 72 Vt. 142, 47 Atl. 403; State v. Powers, 72 Vt. 168, 47 Atl. 830; State v. Ward, 61 Vt. 185, 17 Atl. 483.
The prosecutrix, after testifying, without objection, to telling a Mrs. Burnham, about acts of the respondent, was further asked: ‘ ‘ What did you do while telling her this story ? ’ ’ The witness answered: “ I was sitting in the sittting room with her. ’ ’ The question was objected to on the ground that the State’s attorney could not go into detail. After the answer -was given the respondent’s counsel said: “I object further to this line of evidence on the ground that, this being statutory rape, the element of consent is not in it, and this line of evidence is only admitted in this class of cases on the question of consent.”
The first ground of objection is disposed of by what fol
The mother of the prosecutrix and wife of the respondent, having testified to indecent acts of familiarity on the part of the respondent toward the prosecutrix on a certain occasion, was asked: “I ask you whether there was another occasion, or any other occasion through the year of 1917 and up to January in 1918, when you saw anything that you regarded as wrong on his part toward the daughter?” Eespondent’s counsel objected that it called for her inference. The objection was overruled, and an exception noted. The witness answered: “During the summer months I have seen him do things I thought he ought not to do.” In the circumstances, the exceptions do not show reversible error. The question called for a direct answer. While it embraced a conclusion, it was merely introductory, and was intended to direct the attention of-the witness to matters presently inquired about. Immediately following the answer now complained of, the witness testified somewhat in detail as to what she had observed; but it does not appear whether she did or did not, nor whether she could state fully all the acts, looks, motions, or signs observed by her, indicating his designs, whether evil or otherwise. We cannot say that this case does not fall within the exception to the general rule that permits a witness, after stating what he had observed so far as was practicable, to add his opinion or conclusion. In re Clogston’s Will, 93 Vt. 46, 106 Atl. 594; 2 Jones on Ev., sec. 360.
The same witness had testified that she had spoken but once to the respondent respecting his conduct toward the .prosecutrix, and thereupon she was asked why she did not speak to him more, to which she replied: “Because I was afraid of him.” That this was admissible is clear. It was received to explain the conduct of the mother in failing to do what was natural for a
Mrs. Burnham, a witness to whom the prosecutrix entered her complaint, was asked how the girl appeared at the time of making the complaint. She answered that the girl appeared very nervous. This was objected to as going beyond the rule. The rule is not limited, as claimed by the respondent’s counsel, to the time before the prosecutrix makes complaint to any one, and the authority cited by him does not so hold. The holding there is otherwise. State v. Bedard, 65 Vt. 278, 26 Atl. 719.
Alfred L. Farmer, a witness for the State, was asked: "Mr. Farmer, I want to ask you whether George Gile has a reputation in the community in which he lives, as to his moral character ? ’ ’ He answered: "Yes, sir.” He was then asked: "Is that reputation good or bad?” Attorney for the respondent then said: "When, before this charge was made?” To this the State’s attorney replied: . "You didn’t confine your questions to any period of time.” The respondent’s attorney said: "If that is omitted I except.” The witness then answered: "Bad.” The foregoing is all that we have of the record upon which to determine the question submitted to us, except what the court said to the State’s attorney in admitting the-evidence. The court said: "You may ask it if you want it, in view of his testimony” — referring to the testimony of the respondent, "that he has put in.” Counsel disagree as to what the respondent had put in relating to the evidence of reputation; the State claiming that the respondent had put in evidence without limiting it to a time before the charge against the respondent was made, and the respondent claiming otherwise. The transcript not being produced, and it not affirmatively appearing that similar evidence, unlimited as to time, had not been put in by the respondent, we cannot say that such evidence had not been put in by him, or that the court erred in admitting the evidence. We cannot assume error. As we have often said, the exceptor must make it affirmatively appear that error has been committed, and this he has not done in presenting this exception.
The point raised by the eighth and last exception briefed by the respondent is that the time is alleged with a continuando invalidating the information for want of sufficient certainty as to time. This allegation is in no way inconsistent with the positive allegation of time contained in the count, and is altogether
Judgment that there is no error, and that the respondent take nothing by his exceptions.