State v. Teitle

Decision Date06 May 1952
Docket NumberNo. 222,222
Citation117 Vt. 190,90 A.2d 562
PartiesSTATE v. TEITLE.
CourtVermont Supreme Court

Clifton G. Parker, Atty. Gen., Reginald B. McShane, State's Atty., Lyndonville, Henry F. Black, Sp. Pros., White River Jct., for plaintiff.

Witters, Longmoore & Akley, St. Johnsbury, A. Pearley Feen, Burlington, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

SHERBURNE, Chief Justice.

The respondent has been found guilty of second degree arson in setting fire to the so-called Eastman Block in St. Johnsbury at about 1 A.M. on October 2, 1948, and has come here upon exceptions.

The Eastman Block was owned by Harry and Frances Dolgin, and the respondent and his wife, the daughter of the Dolgins, as the owners of a drug store, occupied a part of the ground floor and basement. Against the easterly wall of the basement was a shelf or bench 4 to 6 feet long, 2 to 3 feet wide and 3 to 3 1/2 feet high, which supported two compressor units and motors connected to the refrigeration in the Brody market, located in the same building and next door to the drug store. Over the drug store were some apartments, in one of which roomed Raymond DeForest and his wife's nephew, Bertram Bixby. When the fire was discovered it was in the vicinity of and above the bench in the basement. After the fire had been put out the top of the bench including the part under the motors, the wall back of it and the top of the ceiling for an area of 10 or 12 feet were found to be charred, and the covering on the electric wires for approximately 20 feet was found burned off in places, the wiring on the wall leading to the motors was scorched or burned, the copper tubing leading to the compressors was broken open, and the other equipment showed exposure to heat. After the fire paper or cardboard ashes were observed on the basement floor over an area of 10 or 12 feet in the vicinity of the shelf. Briefly stated, the State's evidence tended to show that the respondent had told DeForest, who had worked in the drug store some for him, about plans for remodeling and enlarging the store; that shortly before the fire the respondent mentioned to DeForest that a fire would give him a chance to rebuild the store and make it larger, and that if DeForest would help him he would make him manager of the new store and would get Bixby a job with Mr. Dolgin; that on the night of the fire when Bixby was also present, the respondent for the third time mentioned a fire, and the three visited in the back room of the store talking about a fire after the store had closed for the night. Finally the three went down into the basement and the respondent dropped some lighted matches into a large carton half full of crepe paper located about 18 inches from the side of the shelf upon which were the compressors and motors, the top of the carton being a little lower than the shelf. After the crepe paper caught fire each of the three threw his lighted cigarette into the carton, then they went upstairs and out the front door, which the respondent locked, and Bixby went to his room in the block, DeForest went to the railroad station to take the night train, and the respondent got into his car parked beside the store and drove away. Except for the corroborating testimony of two witnesses tending to show the respondent at the scene of the fire shortly before it was discovered, all the direct evidence came from DeForest and Bixby. The defenses were an alibi, lack of motive, and that the fire might have started from some defect in the compressors, motor or wiring. Before the trial both DeForest and Bixby had pleaded guilty to arson in connection with this fire.

A large part of the cross-examination of the accomplice DeForest was devoted to an attack upon his credibility by showing who and what the witness was. He testified that from the time he was born on Nov. 14, 1908 up to 1926 or 1927 he had gone by the name of Euclid Therriac, but had not done so since. That under that name he married Anna Beaulieu around 1926 or 1927. That he married his present wife, Mabel Bassett, in 1935. When asked where Anna Beaulieu was he replied that he didn't know and he didn't know how long since he had seen her. He was then asked, 'Did you ever get a divorce from Anna Beaulieu?' and the question was excluded upon the objection of the State, and the respondent excepted. Later he testified that he had a daughter, but that he didn't know where she lived and that he hadn't seen her since 1926. He was then asked, 'And you abandoned her when she was a year old, did you not?' and the question as put was excluded upon the objection of the State and the respondent excepted. Later, after admitting that he had pleaded guilty twice to selling intoxicating liquor and had been convicted on a charge of larceny, he testified that when he got his license for marriage to Mabel Bassett he told the town clerk that it was his first marriage, and that he lied in doing so. He was then asked, 'Why did you do that?' and the question was excluded upon the State's objection, and the respondent excepted.

A reasonable opportunity to show in cross-examination that a witness is unreliable, prejudiced or biased is a matter of right, and much latitude is to be allowed in this line, but the extent to which it shall be permitted to proceed rests largely in the discretion of the trial court, whose action will not be revised here unless an abuse of discretion is shown, and the contrary not appearing, it will be taken that the ruling was made as a matter of discretion. State v. Quesnel, 116 Vt. 68, 69 A.2d 6; State v. Schoolcraft, 110 Vt. 393, 8 A.2d 682; State v. Fairbanks, 101 Vt. 30, 34, 139 A. 918; State v. Long, 95 Vt. 485, 491, 115 A. 734. Stated otherwise, the credibility of a witness is always open to attack, and a wide latitude is allowable to a cross-examiner for the purpose of showing who and what the witness is. Cummings v. Connecticut General Life Ins. Co., 102 Vt. 351, 363, 148 A. 484; State v. Slack, 69 Vt. 486, 493, 38 A. 311.

Where a witness is asked on cross-examination as to a particular fact not material to the issue for the purpose of impeaching him, his answer concludes the party, by whom such question is put, and cannot be contradicted by other evidence, except as to a conviction of crime, which, if denied by the witness, may be proved by the record, supplemented, if necessary, by parol evidence as to the identity of the witness as the person whose conviction the record shows. 70 C.J. 897, Witnesses, § 1099. Thus in Huckabee v. Montgomery, 113 Vt. 75, 29 A.2d 810, a denial by the plaintiff that he had ever cursed a person in his life, because a collateral matter, was not permitted to be contradicted by evidence that he used profane language the day after the assault in question. And in State v. Fournier and Cox, 68 Vt. 262, 270, 35 A. 178, 180, the opinion states: 'Much latitude is allowed counsel in cross-examination of witnesses in regard to the facts which bear directly upon their present character and moral principles, and therefore essential to the due estimation of their testimony by the jury. Questions like whether the witness has ever been confined in state prison, and similar ones, are often allowed, although collateral to the main issue, but relevant to the character of the witness.' In State v. Long, 95 Vt. 485, 492, 115 A. 734, 737, a witness for the State was asked in cross-examination about his relations with a woman, and he denied any criminal intimacy with her, and his statement was not permitted to be shown to be untrue because a collateral matter; and the opinion states: 'A witness may be cross-examined as to collateral facts which tend to test his accuracy or veracity, but the cross-examiner must be content with the witness' answers, and cannot contradict them by independent proof.'

Where it is sought to discredit a witness by inquiries regarding particular instances foreign to the issue, the exercise of the court's discretion is often determined by the nearness or remoteness of the occurrences. State v. Meehan, 86 Vt. 246, 249, 84 A. 862. But it is not necessarily an abuse of discretion to deny cross-examination as to a fairly recent immoral act for the purpose of discrediting a witness. Thus in State v. Long, supra, 95 Vt. at page 491, 115 A. 734, where the respondent sought to question a witness for the State about his relations with a girl, and to show that they were such that the birth of a child resulted, it was held that the exclusion of the line of inquiry did not show an abuse of discretion.

The three excluded questions related to remote matters. Had the witness answered the question about divorce in the negative it would not prove the witness to be a bigamist, as the respondent claimed, since it did not appear that his first wife was alive when he married a second time. The question about abandoning his child was faulty because it made an assertion. 70 C.J. 691, 899; Walters v. State, 174 Ind. 545, 92 N.E. 537. The witness having admitted that he lied to the town clerk the court might reasonably think that that line need be pursued no farther.

The right of cross-examination is not to be impaired in any of its respects. But its extent is within the discretionary control of the trial court provided the right itself is not infringed. We have often said, as in State v. Pierce, 88 Vt. 277, 92 A. 218, that the modern tendency is toward greater liberality of cross-examination for the purpose of finding out who or what the witness is. But this by no means implies that the courts have abrogated the rule above stated. The pursuit of a witness into the realm of collateral matters must, of necessity, end somewhere--or litigation would not. The trial court's discretion must fix that limit, though the exercise of this administrative function be attended with some difficulties. York v. Partridge's Estate, 99 Vt. 329, 333, 132 A. 37. Here the...

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