Henry Russ v. Michael Good

Decision Date19 November 1917
PartiesHENRY RUSS v. MICHAEL GOOD
CourtVermont Supreme Court

October Term, 1917.

TRESPASS for assault and battery. Pleas, the general issue and self defence. Replication, de injuria. Trial by jury at the September Term, 1916, Washington County, Fish, J presiding. Verdict for plaintiff. Defendant excepted. See the prior report of this case, 90 Vt. 236, 97 A. 987.

Judgment affirmed.

John W. Gordon and S. Hollister Jackson for defendant.

Richard A. Hoar for plaintiff.

Present: WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION
TAYLOR

The action is trespass for an assault and battery. The case was tried at the September Term, 1914, of Washington County court on a plea of self defence, with verdict and judgment for the defendant. It came to this Court on exceptions and was reversed for improper argument. 90 Vt 236, 97 A. 987. After the remand the pleadings were amended by adding the replication de injuria and a new trial was had, resulting in a verdict and judgment for the plaintiff. The facts developed on the retrial were substantially the same as at the previous trial and are sufficiently detailed in our former opinion.

The defendant testified in direct examination that on a certain occasion he saw the plaintiff strike and kick a young man named Meeker. In cross examination he was asked if Meeker hadn't been greasing the face of plaintiff's hammer and tools so that, when plaintiff would strike, his hammer would slip off, and under exception replied: "I don't remember any greasing about it. I don't know anything about that." This was not error. The defendant had testified that he was present and saw the affair. It was proper to find out all that he knew about it that would affect his estimate of the plaintiff as a "man of war." Besides, the answer was colorless and no possible prejudice to the defendant could have resulted.

Later, Meeker was called as a witness in rebuttal and after testifying that on the occasion in question the plaintiff kicked him, but did not strike nor injure him, he was asked: "What did you do just before that? " and answered before an objection was interposed: "We greased his hammer." Discussion followed at the close of which the court excluded the question and allowed the plaintiff an exception. The matter has been argued here as though the ruling was the other way, as indeed the bill of exceptions would seem to indicate. But the transcript is made controlling and clearly shows that the defendant has no cause for complaint.

It had appeared in evidence that soon after the encounter with the plaintiff the defendant pleaded guilty in the Barre city court to a grand juror's complaint for a breach of the peace on account of the transaction involved in this suit. The defendant had testified in direct examination that he did this upon the advice of the chief of police of the city of Barre, that it was cheaper and easier for him than to try the case. Four exceptions were saved in the course of his cross examination on this subject. They are so related that they can most conveniently be considered together and raise the question of the scope of proper cross examination. Defendant's counsel contend that "the characterizing of the defendant" and the inquiries as to his property were outside the limits of legitimate cross-examination.

Briefly stated the situation was this: After the defendant had said in cross-examination that the reason why he pleaded guilty was "to get off as easy and cheap as he could,--didn't want any further trouble," he was asked: "And you had rather have a police record than to try the case and be acquitted of the charge * * * that the kind of a man you are?" Against an objection by his counsel "to his characterizing the kind of a man he is," defendant replied under exception: "Well, I didn't have any money." Then followed the other questions objected to, which developed the fact that the defendant when he pleaded guilty held the title to a cottage house, a double tenement house and two lots, though he didn't have them paid for.

Defendant's plea was an admission that his conduct on the occasion in question was not justifiable and lawful, but unlawful and criminal. The weight to be given to it as evidence in this case depended upon the conditions and circumstances under which the plea was entered, and it would be the duty of the jury to consider the admission in the light of such explanation as the defendant saw fit to give. Russ v. Good, 90 Vt. 236, 240, 97 A. 987; McKinstry v. Collins, 76 Vt. 221, 227, 56 A. 985. But the interests of justice required that a full opportunity be given to test the reasonableness of the explanation by cross examination. It is clear that the court did not overstep the bounds of discretion in permitting the cross-examination to go to the extent it did. The criticism as to "characterizing the defendant" is without foundation and in the inquiries as to property counsel only followed where the defendant led in attempting to extricate himself from an embarrassing situation.

In the closing argument counsel for plaintiff called the jury's attention to the fact which appeared in evidence that all the witnesses summoned by the plaintiff were still working for Jones Brothers and inquired: "Where is Good?" Defendant's counsel objected saying: "He is probably trying to make the inference that the defendant was ejected, instead of voluntarily stepping out and going to farming a good while after this thing occurred." When asked by the court what he had to say, plaintiff's counsel replied: "That it is perfectly proper to show that he is not there with the boys now." Thereupon the court directed him to go on and allowed the defendant an exception. Plaintiff's counsel continued: "What I was arguing to you, gentlemen, you see the trouble he had there, you have heard him tell about it, and so far as the witnesses can tell you about it, were from the statements of his own brother--or the action of his own brother--he seems to be an undesirable element; and the other witnesses that appear here in court, as far as they have testified, they are still at Jones Brothers and this disturber is no longer at work at Jones Brothers." On defendant's counsel asking for an exception to the continuing of this line of argument the court, addressing counsel, said: "I think your argument is pretty doubtful on that point * * *. There is a good deal of question whether you ought to go to the jury on the question as to whether the defendant stayed or went away from the Jones Company, and I think I will say in that regard that your argument better not be regarded by the jury. I don't think it will help them any." To this plaintiff's counsel replied: "If the court thinks it is improper I will withdraw it." Defendant's counsel asked that so far as the matter had gone they have what benefit there was to the exception and the incident was closed by an exception being noted for the defendant.

It will be observed that the exception of which counsel asked to be saved the benefit, was the exception first noted and that the later objection was made to the continuing of that line of argument. The court on reflection in effect sustained this objection and apparently allowed the last exception to save to the defendant the benefit of the first. What plaintiff's counsel said in continuing the argument was in substance a repetition of what he had already said and, it is agreed, was entirely within the evidence. The fault with it was what defendant's counsel indicated, viz. its probable use as the basis of an...

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16 cases
  • J. A. Healy, Admr. v. James Moore
    • United States
    • Vermont Supreme Court
    • October 6, 1936
    ... ... made to appear. Russ v. Good , 92 Vt. 202, ... 207, 102 A. 481 ... ...
  • State v. Bert Stacy
    • United States
    • Vermont Supreme Court
    • May 4, 1932
    ... ... Wittig v ... Burnap , 99 Vt. 340, 342, 132 A. 39; Russ v ... Good , 92 Vt. 202, 205, 207, 102 A. 481 ...           ... ...
  • State v. Raymond Parker
    • United States
    • Vermont Supreme Court
    • October 18, 1932
    ... ... and there is little profit in comparing one case with ... another. Russ v. Good92 Vt. 202, 207, 102 ... A. 481. Prejudice to the excepting party ... 39; Button v ... Knight,95 Vt. 381, 386, 115 A. 499; Russ v ... Good, supra; Drown v ... Oderkirk,89 Vt. 484, 489, 96 A. 11. And the burden ... ...
  • State v. Irving Lucia
    • United States
    • Vermont Supreme Court
    • November 4, 1931
    ... ... it to ferment, "to give it a chance to get good, taste ... better," following which he bottled it. The bottles were ... Wittig v ... Burnap , 99 Vt. 340, 342, 132 A. 39; Russ v ... Good , 92 Vt. 202, 205-207, 102 A. 481 ...           ... ...
  • Request a trial to view additional results

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