*1 exceptions Several were the refusal taken to requested. appears concerning chancellor to find as All that excepted them the record is that “the defendant to the chan requested by failure find as defendant in. items cellor’s general any question This is too and 8.” statement to reserve review, upon and it for is not incumbent us examine the re quests any requires Platt, to see whether one them attention. Shields, 257, 266, 267, Admx. 96 Vt. exception
An
taken to the decree
ground
supported by
bill,
it
evidence,
findings,
by law,
and not authorized
point
but this does not
out
particular
upon,
defects relied
is not
so
for considera
Higgins Metzger,
tion.
285, 298,
Decree affirmed. Stacy. v. Bert February Term, 1932. J., Slack, Powers, Moulton, Thompson, Graham,
Present: C. JJ.
Opinion May 4, filed 1932. *8 respondent. Lapoint Monti for the and Gelsi W. W. Granai, Attorney General, and G. 0. Jones, Lawrence C. attorney, for the State. State’s brought this case before J. The has Moulton, of murder exceptions following on conviction of the crime
us his wife, Stacy. degree. in the Ruth first The victim was denial an taken to the question relates to The first motion was addressed change of venue. The of a motion for during county session, and which court at then in the term news- for trial. It was based two the case was marked days publications a paper articles, appearing in different few trial, it was prior to commencement of the in each of which plead guilty to murder stated had offered to accept degree, but that the State had refused in the second large alleged newspapers had a plea. It was that the two county impossible to in and that it would be circulation jurymen knowledge who had no of the contents select twelve articles, qualify by interroga- that, in order to them necesary tories, respondent’s specifically counsel would find it refer to the articles. said, law, possesses that at common a court
It has been change power pending the venue of a cause be inherent clearly appears impartial that a fair and it, it trial fore when county laid, had in the where the venue is and statutes cannot be merely specifically power declaratory this ar’e which confer Superior Court, v. Justices law. Crocker common seq., 21 Ann. N. E. et Cas. 1061. 162, 94 This Mass. weight doubt, supported authority, is, no but a rule jurisdiction. obtains this In doctrine State v. different 415, petition change for a Howard, of venue of a manslaughter brought upon an indictment for trial trial be obtained ground that a fair could not because public opinion county regard and disordered excitement Supreme ing It was that neither the Court nor the case. held county jurisdiction grant petition court had since general terms, that a criminal should provided, statute case county charged in the where the offense was to have be tried require and that it the interference of been committed would
389 change might that be a Legislature in there order regulated county. is now The matter place another .trial per a By provided “When by L. 2523 it is that: statute. G. punish an offense son is under information or indictment for by respond imprisonment prison, able death or the state attorney county prosecution ent or state’s where may pending, apply superior judge, petitioning is that the trial such be and had in another removed to county.” by 2525, judge applica And L. “the whom the G. may, tion is preferred, discretion, by writing, in his an order in direct that the trial of such be removed to and had county some other named.” Thus, county power grant court no the motion. superior judge presided, A but judges there were two assistant him, with and these three constituted the court. The assistant judges part are not a of the tribunal erected with statute authority grant applications to hear and of this nature. For this n reason, if other, for no properly motion was denied. law, change
At
a motion for
common
venue was not
suggestion,
granted
fully
on
reason
mere
unless the
be
Superior Court,
Justices
supra,
Crocker v.
page
established.
seen, by
94 N.
162.
E.,
377 of
208 Mass.
As we
2525,
have
G. L.
matter
the determination of the
rests in the discretion of the
judge
application
superior
to whom the
made.
If
suppose
we
superior
the motion
judge
was treated
presided
who
being presented to him such,
term as
as
at the
under the statute
county
(G.
2523),
court,
L.
and not to
no
appears.
error
ruling, being discretionary,
is not to be revised
The
unless an
Mitchell,
of discretion is shown. Pierce v.
abuse
538,
Vt.
contrary
appearing,
540,
we
presume
must
exercised,
required
the discretion was
since the law
it.
Murray
101,
Nelson,
v.
No with so appears by record, any request there testi- far as The motion itself was not mony should be taken. verified. it, an exami- to were attached to newspapers referred *10 denunciatory inflammatory nothing of an or nation shows only report respondent’s counsel was nature, but a the in plea guilty to murder the understood to have offered believed, purpose for of ob- degree, which, it was was the second taining imprisonment, avoiding and a sentence of life the death which, learned, penalty, but it was the State had refused accept. denunciatory articles, though
Newspaper even in themselves and in absence of some character, are not the ac prejudice against actual existence of a the of the evidence require judge, in his dis cused, the the exercise of sufficient be impartial that a fair and trial cannot cretion, to conclude Ann. State, 241, 893, 896, 111 Md. 73 Atl. had. Downs v. City Pennsylvania Reading, R. R. 254 Pa. Co. Cas. 1918E, Ann. 562. or 792, 793, Cas. No answer State, oblige but not counter affidavit was filed the this did judge opinions inferences and contained in adopt the allegations sufficiently proved. motion, to treat as He liberty at to draw his own inferences reach his own con was itself was not evidence of The motion the matters it clusions. Ry. Carpenter, Vermont Co. incited. Central So, assuming that the motion presented had been tribunal, no abuse of to the authorized discretion is made to appear. exception is not sustained. presiding judge that, trial
Early in the ruled un objections given otherwise, to do all should were permission less stood, they counsel would not from where be made be bench, hearing their claims at the out of state allowed to exception ruling, briefs an to this claim jury. The thereby compelled were to make statements his counsel ing that hearing jury, which should not to their in the have come taken that an was in fact It is doubtful attention. being question properly as be ruling, but we treat to the fore us. discretionary power of the a matter within the
This was conduct of trial. The general the cause on supervise court required only permission absolute, but prohibition Several should first be asked obtained. to do otherwise brief, respondent’s which are in the claimed instances are cited but jury, before statements harmful to show enforced bench, approach the requested to permission none them which perceive prejudice that, fail to and, then we further not sus- exception to them. The respondent attributes tained. Sweeney, in Louis the farm of on was committed
The crime 6.35 P.M. 18,1931, between 6.15 April Berlin, the town years about five married the deceased were respondent and city The deceased of Barre. together before and lived union, and a son prior Slack, the issue of a daughter, had a Alta marriage. The year Stacy, born about a after the Gordon January, 1931, and separated in respondent and his wife as Sweeney employed farm, where she was latter went Later on Gordon the children with her. housekeeper. took She her elsewhere, Alta remained with for but to be cared was sent respondent was arrested April 16, On mother. *11 in court support wife. He was on charged with failure recog- upon his own day next, and was released and on the disposition of the case. pending the nizance sporting goods in Lander’s in Emslie, a clerk store William P.M. that, April 18, about 1.15 on sold to the he Barre, testified revolver, and a box of Rem .32-calibre .32-calibre a respondent cartridges. Casey, Edward bore” who had “clean ington years, a number of respondent for testified that the he known time, at being in the store the saw a present revolver respondent handed to the up Emslie, and wrapped over between them concerning question conversation some heard weapon, fit cartridges would and saw whether the re packages. George the store with two spondent Lander, leave store, present, testified that he was proprietor and knew cartridges, and say a of a revolver but could sale engaged whom, he was otherwise at because the time. John Morley at or two o’clock afternoon, said that one he met respondent and him, on street walked beside and that respondent of, near, him in front left the Lander store. Sweeney farm is situated about four and one-half miles southerly Montpelier, a side road from which branches out Montpelier-Northfield highway. cement Murray John from the Griggs testified that saw the and Lawrence some- they, half-past quarter-past three and four in time the after- between noon, walking about miles along highway, south the main two Mary Montpelier. mother, south of and Mrs. Doris Crozier her Crozier, they him after- identified as the man whom saw on that turning highway, opposite house, noon off into the main their leading Sweeney farm, walking the road rapidly and that direction. morning April Stacy, Sweeney,
On the Louis Mrs. Alta children, Slack, neighbors, and their Mrs. Willette and and her McCormick, Montpelier Sweeney’s James went to In truck. Montpelier they joined by George Willette, were and all re Sweeney arriving turned to farm at about P.M. there six Stacy Mrs. got out, and Alta and went into the house. After putting on wheels, Sweeney chains the truck took the Willettes home, away and McCormick walked their to his own home. and changed Alta Slack testified she her mother their clothes, and barn, just the latter went o'ut toward the and that finishing dressing, gone as she was after her out, mother respondent came in and asked her was; where her mother she “Maybe barn,” answered she is down to and the direction; in that went that afterwards back, he came and said, “Did.you your yet?” answered, see mother and “no”; she thereupon said, just minute,” he “Wait her; shot then got up away, and she barn, he went went out to the lying ground, found her mother outside. In a few min Sweeney Stacy came back found Mrs. alive, utes but un bleeding conscious, and Alta from 'a wound in the chest. His testimony to this effect was corroborated McCormick, who farm, and returned to the the sheriff who arrived soon after- having by Sweeney. wards, Stacy been cálled Mrs. was shot twice, back, through once once brain. Her hat was found on the floor of the through cow stable. Alta was shot *12 body, a mark on showing fresh the wall of the room where a A bullet had struck. bullet was found on the sill. window respondent returning Sweeney saw the from the
No witness custody and into 8.30 that was found taken about farm. He direction, walking Montpelier from another evening, towards Sweeney leading hill road from the farm which but there was a being road was found. After with the where he taken connected voluntary by jail questioned gave the officers and a he was to signed by writing down in and him. was taken statement which having purchased In it he denied and ammunition, revolver possession and revolver, denied the of a but said that he had cartridges some purchased which he had Plattsburg, Y., N. marriage. before his having He denied been in the Lander any year. during at having gone store time He denied Sweeney farm, having and on been the Northfield road or having passed the house that Crozier afternoon. He accounted during by for his saying movements the afternoon had he Montpelier come from Barre to between three and four o’clock and since that trying his, time had been to find a friend of who as he informed, had some cider. denied, however, He hav ing had anything to drink. He said “pretty that he was mad” because his wife had him caused to be arrested for non-support, and that he had no suspect anyone reason to shooting his wife. Hr. J. C. O’Neil, alienist, an who, during the week be trial, fore the examined the ques determine the tion of sanity, his testified that gave the latter him an account of his movements during April the afternoon of substantially the same as that included in his statement. respondent’s defense was that he did not wife, shoot his
but that if he did temporarily he was at insane and time governed by an impulse, irresistible caused information he concerning received improper her men, relations with other and certain incidents which he had observed which corroborated that information. He took the stand and testified that he did not remember anything where he was or April 18; that he did on that he did not buying cartridges, remember a and revolver and making that he did not remember jail; a statement at the cross-examination he said that being he remembered found jail, thought the officers and taken to and going that he had been get something friend’s house to got drink but had not .there, and just that he did not remember where he was before also meeting officers. He said that he did not remember his with the alienist. He testified that he knew the conversation right wrong, difference between knew no one had any right wife, wrong kill his and that it was so, to do Throughout wrong to shoot Alta. statement his testi- mony, respondent professed deep for affection his wife Alta. for
394 have al- which we exceptions briefed, than those other questions competency of as to
ready considered, relate to evidence; testify; rulings upon the conduct to Alta Slack given counsel; of instructions arguments certain jury. groups given will attention to the These various be court in the order named. of the as a witness behalf was offered
Alta Slack court competency to her an examination as State, and after subject to her, of oath to administration directed years six She between and seven respondent’s exception. age no limit a child must reach which old, but the law fixes question a was whether competent be as witness. The order to in duty telling intelligence and sense had sufficient she Ramage, testify. v. to Commonwealth truth to her enable 1078; Robinson, 165 N. E. v. 349, 177 Mass. 58 Commonwealth States, v. 426, 121; N. E. United 159 427, Mass. 43 Wheeler 247, Sup. Wigmore 525, 40 244, 93; L. ed. 16 Ct. 1 523, 524, S.U. (2nd ed.) para. 505. In these cases and in other de Evidence necessary cite, years to children six which it is old cisions competent testify. younger, ques were held and even preliminary a a competency of witness is one for the tion of Mooney, 172, 173, v. 19 to decide. Cairns Atl. court Wiggin, 515, 516, 95 116 Vt. Atl. 74. rule Chadwick This infancy a applied in the case of is to be witness. Common N. E. 175 Mass. 56 A. Reagan, S. R. wealth States, supra. The v. United decision rests in the 496; Wheeler court, and is not to be of the disturbed unless it discretion or founded been erroneous an error appears have in Co., Mut. Ins. v. Vermont law. Shields proper It into consideration manner 352. take Atl. apparent possession intelligence, or lack child and her of the photographed record,” be things “cannot into the and these as States, supra. v. United is said Wheeler The matters only about a trial, occurred month before the she testified which may fresh and clear in her recollec presumed, and it were be impress they were of nature calculated to her Indeed, tion. ruling. We mind. find no error fully Furthermore, jury instructed concern were testimony, her and told that it weight given should be ing youth witness, of the carefully view scrutinized be *14 impressionable mind, character of the childish and the well- although deceitful, that, known fact children are not as á rule yet infancy strength imagination pro- of all the the is out of portion power against faculties; to the the other and warned by being sympathy give greater weight led natural to it than fairly rights fully it respondent deserved. The of the were safeguarded, and complain. he has no cause to Sweeney, relating place
Louis after what had taken body Stacy, upon after he found the of Ruth his return to the farm, up testified that he the sheriff went stairs to the room Alta heard crying, and, subject where Slack was respondent’s to exception, permitted testify further to in bed, she was undressed, upon with blood her chest over lung. her The gave substantially sheriff the same evidence, also excep under ground exception tion. The of the was that the offered evi dence material, relevant, was not competent, as the case then clearly stood. But it was material tending as prove step to one theory in the State’s case, of the that after shooting wife, his respondent attempted destroy to girl, the little because only who, she was the witness to his knowledge, testify could presence at the farm. on, Later without objection, except competency, as to her which we Alta already have discussed, stepfather, Slack testified that her after his return to the house vicinity from barn, of the her, shot and that after fiTiding upstairs, her mother she went took off her clothes and went to respondent bed. The conceded that she had been shot through body. The nurse who her, attended described the wound and the course of the bullet. fact that this evidence tended to show an offense charged against than the one
other
did not affect
admissibility,
legitimately
it
its
since
support
tended to
charge for
he
on
which
trial. State v. Donaluzzi, 94 Vt.
142, 145,
So, Eugene Kennedy that he heights the scars of the measured wounds on the child’s floor, and back from the as standing chest she was with her re- and 35 inches on, and found them be inches shoes properly spectively, was material and received. This evidence story facing when corroborated Alta’s that she stood her father closely height mark her, he shot and tallied with wall, by claimed to have been after it had left made the bullet body. upon question her also The evidence bore whether bullet, deputy found the window sill one sheriffs, was the one which had inflicted the wounds. The nurse testified that body the bullet traversed her a downward direc- tion, and conceded that the scar on her chest was caused it. James asked on redirect examina McCormick.was
tion when he first learned that Alta had
injured,
been
and sub
ject
ground
to an
on the
of immateriality, answered
it was when
going
the sheriff came down stairs after
*15
her room.
If
immaterial, certainly
this was in fact
it does not
respondent
appear
by
was
wherein
harmed
it.
Immaterial
ity
resulting prejudice
alone,,
no
appear,
when
made to
does
not constitute reversible error. Fletcher v. Wakefield, 75 Vt.
257, 263,
By exceptions, which briefed, several are and therefore may. together, considered be attacks the admis sibility that, of the evidence which tended show at about day on the afternoon of quarter-past crime, one of the he purchased a .32-calibre revolver and a box of .32-calibre cartridges. Remington support bore” In “clean these ex argued that there no ceptions tending it is was evidence Stacy at the bullets fired Mrs. and Alta show that Slack had revolver, a been fired from .32-calibre or from the or could have indeed, any purchased, or, from revolver. It so does revolver any objections transcript that appear from the these they exceptions taken, and, were are there were stated when the Fairbanks, 30, Atl. 39, 101 Vt. 139 fore unavailable. State 918, and cases cited. ruling. was no in the It there error
However purchase of re evidence of the entirely proper to receive shortly homicide, for this before the and ammunition volver 381, Doherty, premeditation. show tended to lack of R. 951. There was no such 658, 82 A. S. 389, respond- as the connecting weapon with the crime evidence
397 body Mrs. Two taken from tbe ent contends. bullets were re- 13 was Stacy autopsy. at of the State’s Exhibit the time brain, back, and Exhibit 14 from her moved from her State’s being the latter inflicted the fatal wound. State’s the one which in the Exhibit 16 window sill was the bullet found by house, and which tended to show was the one the evidence grains; weighed Alta Exhibit 13 which Slack was wounded. 16, All grains; grains. and Exhibit were Exhibit Exhibit 13 .3 to .32 of an inch in diame- deformed. measured ter; .32; Exhibit .31 and broken into exhibit pieces misshapen several that it not be meas- was so could ured, jury but compared its size could be the size with others, approxi- warranted that it the inference mately the same. There that a was evidence bullet would be- “wasted,” having part or reduced in size of its substance grazed process clearly being jury off fired. The were finding bullet, warranted that the fatal as. well as the -others mentioned, was .32-calibre and had weapon been fired from a purchase of that bore. The of a .32-calibre revolver and a box of .32-cálibre cartridges, time, at the same warranted the infer- ence that the two were fitted to together, especially be used testimony something view of the was said between the re- spondent salesman, at time, concerning the use cartridges in the Although' revolver. expert there was no evidence that Exhibits actually had been fired revolver, from the si-nce the latter article was found, never evidence which tended to possessed sIioav - weapon such a cartridges, shortly homicide, before the present Sweeney he was at farm, and that the bullets which *16 Stacy wounded both Mrs. and Alta Slack were of .32-calibre, amply was sufficient to finding sustain the that fatal thé shot had respondent’s come from the revolver. ground upon
There another which the admission of purchase may of the Shortly the evidence be sustained. after respondent his questioned by officers, arrest was having bought denied cartridges. the revolver and He said that possess he did not a revolver, but had cartridges some which he purchased prior had to marriage, years his previous. some six appeared It had in evidence that “clean cartridges bore” Avere placed in for market the first in 1928, years time three be-
'398 respondent prove proper It was
fore the homicide. consciousness knowingly falsified, for this tended to show a had 466, 470, 1053; 24 guilt. Bradley, v. Atl. State 864; Atl. 44 A. R. Com Harrison, 523, 528, 807, S. Vt. 961, 24 Trefethen, 180, 199, 31 N. E. monwealth v. 157 Mass. L. R. A. 235. weight various
What has been said about the size and admissibility disposes question bullets Exhibits 13, 14, and 16. you asked, “Did Alta at that time
The sheriff was tell (when upon bed) she discovered shot was wounded who had just yes, answer or no?” her — question subject allowed, exception, and the was, qtiestion previously (cid:127)answer “Yes.” The same had been given asked and the same witness, answer the same without objection, so, if error, no harm resulted. Woodhouse v. Woodhouse, Vt. Herrick Town Holland, original complaint charging support wife, city Barre, with failure his filed in the court of upon days which he had been arrested two before the homi cide, subject in evidence, respondent’s was admitted excep tion. tending This was material as to show a for motive crime, especially in connection with the evidence that the re support had that he would not spondent wife, said his and his angry that he was complaint own admission because the fact, urged by him, filed. The complaint been disposition pending and that no had been it, made of does not question. objection Neither is it a valid say affect Stacy appear it did not that Mrs. complaint made the or caused That it to be made. understood this to be the may ease be inferred from his thought statement that he should him, wife have talked it over with and that he was “pretty mad” because she had caused his arrest charge. duly O’Neil, qualified expert insanity, as an
Dr. J. C. called as a witness the State testified that he had jail upon days respondent at the two successive examined the gave during beforé the trial. He the details of his ex the week time. and read the notes which he had taken at the amination *17 your “Basing answer following question was then asked He yesterday testimony yesterday, is, you heard on what your basing your answer on examination morning, and and this you opinion as jail occasions, have some of him in on these two Stacy presid not is sane or insane?” The to whether or Bert your previous exami ing judge to this “And so far as added you your things as jail, nation of him in answer to such confine ’1 your opinion. The Court, haAre basis of testified here as the that he answer, subject exception, witness was allowed to such an was sane. opinion, -which that the immaterial, since urged evidence was It is that this not his 18, and sanity April respondent’s on the issue was mental But trial, about a month later. sanity at time of the may from evidence inferred condition at the time issue be period before existing a reasonable of mental condition within 56, 106 Clogston, 93 Vt. In re Estate after time. too remote Atl. 594. to a time Whether the evidence related the court. ordinarily to the discretion directed question 1038; Niles Atl. 267, 269, 270, 102 Doubledey, 92 Vt. v. Johnson 629; Atl. 360, 361, 89 Ry. Co., 87 Vt. Vermont v. Central 951; A. R. 658, 82 S. 381, 390, 48 Atl. Doherty, 72 Vt. v. State Atl. 99. 383, 388, 65 Varnum, 79 Vt. & McKenzie v. Bountwell revision- subject to discretionary rulings, it is not Like all other in in this perceived None is appear. an abuse is made to unless stance. faulty be question was that the claimed
It is further undisputed facts substantially all the include did not it cafise necessary. But this was not bearing upon the issue. in the case only a included because it not inadmissible question was any prove, and tended to facts which the evidence part of the given only weight to be to the evidence. affected the omission McKinstry al., 147, 153, 52 Atl. et 74 Vt. Collins R. 951. Doherty, 82 A. S. objec says question Again, the testimony truth of the in that it did not assume the tionable part respondent and used the witness as given say objection enough that this opinion. for his It is basis trial, State v. and so is not available here. made Turkey, 162, 173, Fairbanks, supra; State v. *18 400
Furthermore, circumstances, not, was under the the witness obliged respondent’s testimony true. to assume that the was if
Indeed, there error in the admission the evi were of dence, appear respondent it does not how the could have been by harmed it. did claim at He not that he was insane the time trial, that, homicide, the but if he the he did so committed temporary while in a derangement. state mental narrating Dr. While O’Neil was the conversation which jail, he had had at that the with he testified latter remarked that one of the had told him that Alta officers said, “Daddy did it.” An this, was taken to but the testimony permitted to stand. was no There error. The put evidence was not proof forward as that what the officer had true, only said portion but as a upon of the conversation which based, part, the witness opinion respond his as to the sanity. ent’s
After the had custody, been taken into arrest, sheriff, along but before his formal with certain deputies, respondent’s his went room in Barre and it, They searched without a warrant. found, and took with them, containing a box Remington .32-calibre “clean bore” cartridges, pasteboard and a containing box a cleaning brush and a small cartridges bottle oil. The box of was identified by Emslie, salesman, as the one which respond he sold to the and for identification ent was marked “State’s 20.” The other by box was identified the same witness as the one in which he placed the revolver when he delivered it to the respondent, and which at that time had also cleaning contained a brush and bottle of oil. It was marked for identification 22.” “State’s envelope containing An some cartridges loose from box 20, marked containing State’s another one a bullet taken from cartridges, one were received as State’s Exhibit 17 of. 15, State’s respectively. Exhibit All of the evidence relat ing to these subject articles was respondent’s excep-' received upon tion ground they had been obtained means illegal search, and thereby of an being compelled he give against evidence himself in violation of his constitutional rights. 22, 20 and being identified, State’s after were evidence, on, offered in request State, later at the of 15 and 17 testimony Exhibits and all regard taken in 20, record, from them, and to was struck State’s however, in- jury respondent, it. disregard instructed to claiming that error which exceptions, sists there was subsequent court. was not action of the cured why have been was no reason the evidence should There from the record. It was material admissible. struck by a con objection that the articles had been obtained search legality warrant, ducted without a is without merit. The Suiter, search was not involved. State Vt. Krinski, 162, 165, 166, 37; 62 Atl. State al.,
State v. Barr et
43.
Atl.
When evidence
offered,
obtained,
the court will take no notice of how it was
legally
illegally,
properly
improperly,
whether
or
whether
try
nor
it form
question.
will
a collateral issue to
*19
101, 102,
590,
64
23 Atl.
Mathers,
268,
v.
Vt.
15 L. R. A.
36
Fish,
18,
72
921;
20,
174,
A.
R.
Barrett v.
Vt.
47 Atl.
51
S.
914;
A.
754,
Dana,
(Mass.)
L. R. A.
82
S. R.
Comm. v.
2 Met.
329, 327;
Tucker,
457,
v.
189 Mass.
470,
127,
Comm.
76 N. E.
(N. S.) 1056;
Tibbetts,
519,
7 L. R. A.
Comm. v.
157
521,
Mass.
910; Wigmore,
(2nd ed.)
32
E.
4
para. 2183,
N.
Evidence
2264;
Greenleaf,
(16th ed.) para. 254,
Evidence
a.
Wigmore
And see
"
’’
by Illegal
Evidence
Seizure,
Obtained
Search and
8 Am. Bar
Journal,
Ass’n
479. The fourth and fifth amendments to the
Constitution, relating
federal
to
seizure,
unreasonable search and
self-crimination,
from
upon
and freedom
are not restrictions
state,
powers
operate solely
of a
but -were intended to
on the
Jersey,
Brown v. New
172,
federal Government.
175
174,
U. S.
119, 120,
Sup.
Spies
44 L.
77;
Illinois,
ed.
20
Ct.
123 U. S.
131, 166,
80, 86, Sup.
L.
22;
31
ed.
8
In Dewar,
Ct.
re
102 Vt.
340, 346,
489;
148 Atl.
Felch,
State v.
92
477, 483,
Vt.
105 Atl.
23; In
Rending
re
Co.,
Consolidated
was held and Ban- by subsequent in the decisions Suiter overruled Cases. the evi appears ruling that the which
Therefore it to the gratuity a mere was struck from record was dence he has no respondent, legally entitled, to he was not which original exceptions complain of its admission. The are cause disposes respondent’s claim of not sustained. This also testimony in receiving relating per error State’s mitting it to remain on the record. excepted also to the admission in evidence signed by him, ground statement on the that certain
the written parts with, of it by, were connected and influenced the articles unlawfully they knowledge pos- seized and his were officers, session to the allowance question of a asked him paste- cross-examination to the relative contents of the (State’s 22). box argument board for the claimed error already these instances is answered what we have said. State’s Exhibit was a Remington box .32-calibre cartridges. It produced by George Lander, “clean bore” proprietor store where evidence tended show purchased that the the revolver and ammuni tion, and who that it was, knew, testified far so as he from the same lot as the a person box which was sold to in his store be o’clock the afternoon of April tween 18. Emslie, clerk, cartridges that the were testified similar to those which respondent. An he sold taken the ad exhibit, of this but it is mission not sustained. The evidence clearly proper it identify relevant and since tended to *20 the ammunition which describe the claimed was used in respondent says of crime. the commission the The that Exhibit so 21 was connected with State’s 20 that when con the evidence cerning record, the struck latter was from the former be the an inadmissible, came but examination of the does not record substantiate this claim. son, years age, respondent’s
The a child four was during room the into the court direct examination brought him, “Who this?” The respondent, and his counsel asked the “My boy.” question The next was respondent answered: “Gordon,” respondent said, is his name?” the “What then, addressing child, daddy.” Attorney the “Come to objected, stating reason, General as his that this was done for purpose prejudicing jury. the exception the An was taken remark, respondent this but it is without merit. The had interjected something. that by question, was not called for the entirely immaterial to the issue. The comment of the At- torney General was not without foundation. reasonable argument jury, respondent to the counsel for the
.In said that signed by respondent the written statement the was taken at slapped respondent’s the time when a detective face. permit The court argument, refused to this and reminded coun supported by sel that it was not An exception evidence. taken, was but an transcript examination of the shows that right court was about the matter. incident referred to took place at two o’clock in morning day following prompted by profane epithet arrest was used the re spondent to the detective. The latter afterwards admitted respondent hasty. that he been No further violence appears except necessary such as was respondent restrain the kicking from 'the detective in the stomach. The statement was signed taken down and during following afternoon. No appears. error In describing jury to the the manner in which the State shooting claimed that done, attorney the State’s ex- claimed, “bang, bang,” evidently referring to two revolver argued shots. It is that improper this was because there was no was, evidence that anyone there or that heard such a sound. altogether This is too trivial require a matter our attention.' argument
In the Attorney of the General, after com enting upon the respondent examination of ’Neil, Dr. O and claiming that the former was attempting to, then induce the belief that insane, he was attention was called to the fact respondent’s counsel had been consulting with bim dur ing the trial. An taken, upon ground such proper. consultations were they Of were, course as the court remarked at the time. point But the argument of the this conduct was inconsistent with the defense of insanity existing at the time of crime; and with the erratic conduct at Dr. O’Neil’s visit him. As seen, we have the mental condition of at the trial was material
404 the derangement on claimed bearing npon his having some as appearance right to consider jury had the
prior date.
in the
participation
and
apparent
interest
actions and his
that
claimed
that it was not
question. The fact
trial, upon this
im-
argument
not
the
did
make
respondent was then insane
the
exception is
sustained.
proper. The
at-
argument
too,
So,
insane was
that he was
to believe
Dr. O’Neil
tempted to cause
and ex-
peculiar conduct
of his
justified in view of the evidence
at
time of the examination.
pressions
Attorney
said:
argument
General
Later in his
‘‘
that,
re
this
beyond a reasonable doubt
you
satisfied
If
are not
by your
say ‘not
charged,
verdict
spondent
guilty
as
then
and allow this re
guilty’ and
the doors
this court room
open
look
free,
go home, gentlemen, and
spondent
go
and then
your
eye,
in
your
your
mothers
'Wives
sweethearts
you
taken,
exception
An
was
and tell them what
have done.”
Attorney
argument
an
withdrew the'
with
and the
General
jury
charge
it.
In
apology and asked the
not to consider
jury
disregard
argument
instructed
it. The
the court
improper, but the mischief was cured
its withdrawal
subsequent
court.
v. Wood
instruction of the
Woodhouse
McKinney,
house,
91, 144,
758;
99
130 Atl.
Fadden v.
87 Vt.
Vt.
351; Cunningham
Agricultural
316, 326, 89 Atl.
v.
&
Bradford
913;
Holland,
Trotting Ass’n,
35, 37,
84
77 Atl.
Herrick v.
Vt.
502,
6;
Suiter,
397,
513,
391,
83 Vt.
Atl.
State v.
78 Vt.
immediately
Atl. 182.
fact that the court did not
instruct
jury concerning
matter,
charge
but waited until the
not,
circumstances,
question.
given, doés
under the-
affect the
Co.,
v. M. & W. R. R.
Vt.
An taken to the statement of At torney argument that no General to the effect murder was question, that, cir atrocious than the one from the more case, it could not other cumstantial evidence have been gave oppor- an than that never his wife wise
405 say this that shooting We cannot her. tunity plead before to show tended to The evidence inference. an unreasonable was respondent also barn, and that Stacy to the Mrs. went the that Stacy’s hat found on the Mrs. was in that direction. went body lying outside, 30 was about the cow stable. Her floor of back, in the this wound barn. shot but feet from the She was produced paralysis. fatal shot not have death The would fairly that top of her It was to be inferred the head. entered barn, in shot her respondent the found hér the either then pursued house, or back, her as she fled toward the the so, standing had then, her, shot -asshe did above after she her fallen, the had The inflicted wound which caused her death. during which all this occurred claim short time warranted the opportunity given plead had been her to or remon- that no atrocity of not upon crime was The comment the the strate. exception We it unfair. The is not sustained. have considered point objection regard to the that the too without was indefinite any question to for review. reserve Attorney respondent also said
The
General
that the
had
cartridges,
testified that he
some clean bore
and that the
that
him
them,
sheriff had testified
had
he
told
that he had
but
developed
cartridges
placed
that it had
that this sort
was
argument
on
market until 1928.
permitted
the
This
sub
In
ject
exception.
respondent
statement
his written
said
cartridges
that
had some .32-calibre S. and W.
he
which he
purchased
marriage.
before
On the stand he was shown
containing
Exhibit
Remington
box
State’s
.32-calibre
produced
cartridges,
bore”
had been
“clean
which
the wit
Lander, and
like those
ness
identified as
which had been sold
crime,
afternoon of
and testified that it
was similar
he had.
which
The sheriff testified that
told him
the box
he
cartridges.
bore”
had “clean
variation
that he
between
testimony
argument
trifling
and the statement
was too
ground
objection,
exception
afford a reasonable
537, 554,
Co.,&
Vt.
merit. Carleton v. Fairbanks
88
without
argument
claims,
not,
respondent
did
as the
from
jury
which had
struck
bring
the evidence
been
before
exception,
Moreover,
stated for the
ground the record.
no
holding
for
it
would
a reason
unavailable.
and this alone
be
Severance,
Co.,
Fruit
Vt.
Usher v.
Miles v.
531, Atl. 741.
argument
An
was also
taken
Attorney
said
was a
General wherein he
perjured himself and
the defense
liar and had
wholesale
given
and should not be
was a fabricated one
consideration.
advocacy
denunciatory
all to be
method of
is not at
Such a
disap
commended,
express'
take this occasion
our
we
proval
State,
of it.
evidence introduced
includ
Yet the
conflicting
respondent,
statements of
so at vari
ing the
Attorney
justified
ance
the defense
General was
with
claiming
truth,
told
that the
had not
and that
consciously
was not based
fact and was
a false
his defense
*23
Gomez,
490, 498,
89
State v.
Vt.
Whatever held other voluntary in subject it is the established rule in this crime, palliate operate toxication does not excuse or to reduce degree perpetrator previously of a homicide where the requisite responsibility. in the condition of mental “Where the requisite proof murder, is adduced to show a wicked intentional (the respondent) permitted voluntary he is not to show a temporary intoxication in extenuation of his crime.” State v. Tatro, 483, 490, 494; Hanlon, Vt. State v. See, generally, Prof. Sayre, Francis B. “Mens , " 45 Harv. charge Law Rec. 1014. given as
Rea correctly law, respondent’s exceptions stated the and the are not sustained. jury court instructed the that the evidence tended respondent, questioned by that the show the investigat when
ing officers, falsified as to his whereabouts and movements April 18, and that this proper evidence was to be considered *24 tending to guilt as show a consciousness of part, although his sayings evidence of other motives for such conduct, indicative of or consistent with should innocence also be considered. An. exception was taken the failure of charge the court also to by respondent might that such statements be considered as bear ing upon his condition. mental permitting was no in jury
There error the to consider the respondent’s evidence of the falsehoods for purpose indi the Bradley, supra; v. cated. State v. Harrison, supra. State Dur ing part charge, this the the court dealing was not with the insanity, speaking, clearly defense of but was appears as from context, assumption the the that the was sane. Any application of the insanity evidence to the issue of at this question place. on, Later the
point have been out would carefully considered, and respondent’s mental condition was the in jury all into consideration were told to take the evidence the question. exception to this and no deciding this No was taken any request Assuming, instruction ivas made. but for further respondent’s prevarica- deciding, that the evidence of the question claimed, hearing upon whether, the as he tions had a if impulse, an irresistible he had committed he had acted under sufficiently that matter crime, we think the covered complain. is no charge, and there cause said, “Now, case, respond in if The court also this requisite stamina, nothing has intro ent had the mental been any justify in that under circumstances would duced evidence shooting farm There going from Barre to this his wife. any that nothing in the evidence under circumstances would any possibility justify conduct, so as to under reduce the such you manslaughter say, assuming that find re crime to —I requisite himself, I spondent had control of to which will exception your attention.” An was taken to this soon call Assuming properly saved, this statement. By L. error, any, 6802, upon if was harmless. G. a trial may jury manslaughter if, convict of for murder the in its opinion, prove offense, is sufficient to the evidence but is not By convict of murder. the verdict of murder in sufficient to degree, premeditation, deliberation, first and malice afore necessarily Any thought present. found to be of these were one manslaughter, the crime of elements is inconsistent with they guilty all found to exist a verdict of of man since were justified. been Therefore evi slaughter would not have jury, opinion in must have been sufficient to dence, proper logical body It for that convict of murder. charge sustained, of murder was consider first whether only question negative, should be answered to take if this Long, manslaughter. v. 95 Vt. up the issue of State may charge 734. Whatever fault there have been 115 Atl. Long, supra, page v. 95 Vt. at the verdict. State was cured 364, 111 Atl. Prouty, 94 Vt. 495, 514, 518, 856. Wilson, Atl. 559; Parizo jury statute made the re telling After request, behalf, at his his own competent witness spondent *25 ‘‘ say: given testimony on to the court went The credit to be his solely you, you rests and are to consider it in of his with view trial, give in result weight interest of the it the to which you fairly think it is entitled. It is obvious under the statute respondent goes upon that if a stand, it is because he desires favor, and intends that his shall in his evidence make shall tend consequences charge to shield him from the of the that is made against exactly him. develops This the interest that he has. party He has utmost interest that a can have. He has all originate the interest that can inspired by peril and be charge which he is and against which is made him when brought trial; party he is all the that a interest can have in being convicted of charged. with which he is That crime position in person charged is the which the with crime stands ’’ goes upon when he the stand as a An exception witness. ‘‘ following taken words: excepts to the charge respondent’s court’s that evidence is taken as a him; shield other words that the evidence should be viewed light in the being his evidence is used as a pro shield to him tect from the crime language committed.” The thus made subject expressly approved in State v. Daley, 38 A. (G. R. 694. The 2554) statute L. provides that given the credit to be the'testimony of a re spondent solely jury, is be left to the under the instructions court. It is obvious that when a takes the stand, gives which, evidence if believed, will tend to show innocence, it must his be because he designs desires and that it favor, protect shall make in his him shield from the consequences accusation, of the peril conviction of the crime. argument, however, goes beyond scope excep urged It charge right
tion. denied the of the re spondent prosecuted to be “heard himself” when for a crimi offense, nal Chapter under Article 10 of 1 of the Vermont Con stitution; right by jury, his to a trial under Article deprived liberty it him of legal without justification, under Article and the Fourteenth Amendment to the federal Constitution; that it nugatory rendered presumption of in ;. and that it right nocence violated his to defend himself under L. 2496, and to competent G. be a witness and have the credi-
410 L. 2554.
bility testimony solely jury under G. of his left the objections trial, even were made on None of these raised, they not be for consideration when if meritorious would Capital Garage Powell, v. first time in this court. Co. for the 204, 210, 423; Higgins, Metzger, 122 Atl. Admr. v. 101 97 Vt. 423, 443, 285, 296, 394; Williams, 143 Atl. v. 94 Vt. State Vt. However, argument ingenious than the rather charge deprived respondent of no constitutional sound. The right himself, to defend and to be heard safegard. He had competent purpose. defense, and was a witness for that in his right jury accept testi did not have the to have the his But he mony would as true without reference to such considerations as naturally credibility. duty court, It of affect its jury’s 2554, L. call matters under these to the attention. G. doing, deprived jury By respondent trial, was not of a so any liberty process law, presump of or of his without due of entitled. The is not tion to which he was sustained. respondent excepted to of court the failure jury impulse might an for a instruct the irresistible exist long might time, or for a have existed from the moment respondent charge nonsupport on the time of the arrest of the day upon Stacy request Ruth No until the which was killed. instruction, regard for such an and if had been made we request, time, exception as a it was out and it was not error Perry, 44, it. Northern Trust Co. v. 156 Atl. to refuse Vt. Good, 90 Vt. 97 Atl. 906, 908; Russ v. Clark However, jury Atl. 489. Tudhope, respondent that if the was conscious of the nature been told distinguish right wrong, yet from if mind act, and able to his his destroyed involuntarily completely so that he or will was actions, is, governed if mind his his not control could impulse produced and and irresistible by an uncontrollable im disease, and unable to resist the growing out of mental Stacy, legal in a Ruth then he was sense insane. pulse to shoot amply protected-the point, adequately covered re This duty court, rights. While it was the without spondent’s case, substantial issues in the charge upon all the request, every conceivable comment required to make it was Fairbanks, weight it. and the evidence exception is not sustained. 918. This 40, The record in this carefully case has been examined, all questions raised have been considered. No appears reason disturbing for the result reached in the trial court. Judgment error, there is no and that . nothing by exceptions.
takes Let pass sentence and execu- tion be done. Reargument*
On Motion for J. opinion After in this case was handed Moulton, down, counsel for obtained leave file a motion for reargument, and so, upon have done grounds. several ground The first is based opinion statement in the upon^the *27 objections that certain to evidence were not made the trial court and consequently are not claimed, available here. It is substance, objections that these could not have been advanced at the time the evidence was received, but were included in a subsequent motion. may However be, they this were treated as being properly case, in the notwithstanding the fact that it did appear not they stated, been and were considered on their merits and held to be without force. support
In
ground
the second
urged
it is
that the testi-
mony of
Bogardus
the witness
to the effect
Remington
cartridges
Clean Bore
put
were first
on the market in 1928 was
struck
records,
from the
and that
Attorney
therefore the
Gen-
improperly
eral
argument
made use of it in his
jury.
to the
An
transcript
examination of that,
discloses
while certain
testimony of this witness was struck from
record,
ruling
did not
what he had said concerning
include
this matter.
necessary
It
particularly
remaining
notice the
grounds of
questions
the motion. All the
raised
them were-
fully presented by the
arguments
briefs and
of counsel, and re
ceived our
They
careful attention.
were decided
due
perceive
consideration and we
no reason to recede from the
opinion.
conclusions reached in the
No reason
granting
for
reargument of
appear.
the case is
made
Goodwin, Admx. v.
al., Rec’rs,
Gaston et
370,
*Opinion reargument May 26, on motion for filed 1932.