State v. O'Grady, 65 Vt. 66

State v. O'Grady

65 Vt. 66 | Vt. | 1892

The opinion of the court was delivered by

.ROSS,. Ch.'J,

This is a prosecution for keeping intoxicating liquor with intent to dispose of the same unlawfully. The evidence, to support it was partly circumstantial. It consisted largely of the testimony of three officers who searched the respondent’s place of business. They found no intoxicating liquor. They found the respondent there alone, and upon the entry of the foremost officer, a dump beneath the bar was dropped. This officer testified to detecting fumes of whiskey arising from the dump. He immediately went down stairs to examine and ascertain what had been dumped. When arriving there he found ammonia had been pouted into the- dump, the fumes of which were so strong that he could not then examine it.

The state’s testimony also tended to show that the respondent caused a stream of water to be turned into the dump. It does not appear that the other officers, who came in a little later, testified to detecting the fumes of whiskey. The greater part of the testimony for the State was in regard to facts and occurrences to which there were witnesses other than the respondent and the witnesses improved by the State. The respondent did not testify, nor did he call any witnesses in. his behalf. The court instructed the jury that the respondent was presumed to be innocent until proved guilty beyond a reasonable doubt, properly explaining this measure of proof; that circumstantial evidence, if it convinced them by. this measure of proof, warranted a conviction-. The court then said: “The circumstances upon *69which the State relies to establish" this • case. arose' from this-search and attempted seizure-made-on. or-about the ¡fifteenth of last month. The evidence of- -the-State is uncontradicted by any evidence introduced-on. the .part .of,the' respondent. The respondent has. not testified. The mere fact- that he has not testified is not to be taken against him. . You have'no■ right to consider that fact, but you have, a right to consider the fact that the evidence introduced hy -the State- has not been contradicted only so far, as it may be contradicted in and of itself.” To this portion of the charge the respondent duly excepted. He now-contends that it did not give.-him the full benefit of R. L. 1,655, allowing respondents at their own request, to testify, which provides,- “but the refusal of such person to testify -shall not be -considerfed by the jury as' evidence against him.” The court pointedly told the jury they had no right to consider the fact of his neglect orrefusal to testify against him. In coupling the right to- consider the fact that the evidence introduced by the State - had not been contradicted with this announcement, the court did not commit any legal error. If it impliedly told the jury that they might consider the fact .that- the respondent had not called other witnesses who were present to contradict- the witnesses of the State, as bearing upon the credibility of the latter, this was only adapting its charge to the facts and circumstances of the case. The court should always adapt its charge to the facts and testimony of the case. We do not think the jury could thereby have obtained the impression that they could consider the fact that the respondent had not testified as any evidenqe against him. The charge on this subject was not as much open to criticism as was the charge in State v. Cameron, 40 Vt. 555, relied upon by the respondent, which was held to be without legal error.

The respondent also urges that the charge was argumentative, instancing that part of it which relates to the fumes of liquor, and especially the first illustration used by the court. *70If open to this objection, no legal error in this portion of the charge is called to our attention. Doubtless the counsel of the respondent had urged upon the jury the unreliability of circumstantial evidence, and the danger attending a conviction upon it. The illustration doubtless brought forcibly to the attention of the jury that some kinds of circumstantial evidence might be convincing and reliable, and for that reason the charge might be characterized as argumentative, in that it met and answered the position taken and urged by respondent’s counsel. Yet it was adapted to the circumstances which the evidence of the State tended to establish. It contained no legal error. How far and in what manner the court may meet, by its charge, the misleading arguments of counsel, must largely be governed by the circumstances and evidence of each case. If the charge does not deprive the excepting party of any legal right by limiting the fair scope of the testimony or withdrawing it, or any proper legal view and effect of it, from the consideration of the jury, it is not legal error. No legal error in this respect is pointed out or claimed. This disposes of the exceptions now insisted upon.

Judgment that there is no error in the proceedings of the county court, that the respondent tahe nothing by his exceptions, and' that mittimus issue to carry into effect the sentence there imposed.