State v. Aldrich

• Decision Date: 07 November 1961
• Docket Number: No. 858,858
• Citation: 175 A.2d 803,122 Vt. 416
• Parties: STATE of Vermont v. Lloyd Lawrence ALDRICH.
• Court: Vermont Supreme Court

Page 803

175 A.2d 803

122 Vt. 416

STATE of Vermont v. Lloyd Lawrence ALDRICH.

No. 858.

Supreme Court of Vermont.

Nov. 7, 1961.

John Morale, State's Attorney, Wells River, for plaintiff.

Wilson, Keyser & Otterman, Chelsea, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HOLDEN, Justice.

The respondent Lloyd Lawrence Aldrich was brought to trial at a session of the Orange Municipal Court in December 1960 on an information which alleges violation of the fish and game laws. The complaint consists of two counts. Count I charges that the respondent on August 21, 1960 at Topsham, Vermont used a flashlight in colloboration with another person to locate and take a wild deer. Count 2 informs against the respondent for transporting a wild deer during close season at Topsham on August 21, 1960. At the conclusion of the evidence the respondent moved for a directed verdict of acquittal. The motion was denied and the court submitted the case to the jury on both counts. The jury failed to reach a verdict. The respondent requested and obtained permission to appeal the questions involved in the denial of his motion for verdict pursuant to 12 V.S.A. § 2386.

The first Count relates to 10 V.S.A. § 2982(a) 'A person shall not throw or cast the rays of a spotlight, jack, or other artificial light on any highway, or any field, woodland, or forest, for the purpose of spotting, locating or taking any wild animal, except that a kerosene light may be used to take skunks and raccoons; provided, however, that a flashlight of not more than two cells not greater in size than number 950 may be used while locating in and taking from a tree any raccoon treed by a dog.'

The second Count alleges an offense against 10 V.S.A. § 3059:

'A person shall not take a wild deer by the aid of a snare, trap, salt lick, jack or other light or use such devices to entrap or ensnare deer, nor shall a person hunt deer by a dog or bitch. A person shall not have in his possession or transport a wild deer taken by such illegal devices, nor any wild deer taken in close season. A person shall not transport a wild deer with horns less than three inches in length during the open season except such deer as are taken under the provisions of section 3154 of this title.'

Shortly after three o'clock in the morning of August 21, 1961, during the close season for taking wild deer, Mrs. Geneva French heard a gunshot in the vicinity of a trailer which she occupied as a dwelling on the East Topsham-East Corinth highway. She arose and observed a light in a field some three hundred feet distant from the trailer. The light moved but the witness could not observe anyone holding the light nor anyone standing nearby. Another shot was fired. Mrs. French awakened her son Ernest. Ernest dressed hastily and watched from his car, parked in the driveway at the front of the trailer. Shortly he heard an automobile motor start nearby to the south. A vehicle came into view from this direction and proceeded north one the East Topsham-East Corinth road. Ernest followed as the car ahead traveled toward the Swamp Road. The lead vehicle was a light green Studebaker and carried New Hampshire registration GK 562. The New Hampshire car turned off the highway onto the Swamp Road. French returned to the trailer.

Some time before daylight on the same morning, a car bearing a V-emblem on the grill turned off the Swamp Road into the driveway to the farm of Charles Whitcher. Whitcher watched the vehicle turn around and depart. It stopped for a brief period about 100 yards from the house on its return to the Swamp Road. The next morning, while on his way to the creamery, Whitcher observed tire treads imprinted on the surface of the driveway. In the vicinity of the area where he observed the vehicle stop during the preceding darkness he spotted the carcass of a small deer just off the driveway. There was a spot of fresh blood on the bank nearby.

Later in the morning, in response to a call from the French household a state game warden named Denton visited the French place to investigate the events that occurred during the nighttime. In the highway south of the French trailer, Denton found a pool of wet blood. A trial of blood led from this spot into the field across from the trailer, to an area where the grass was depressed and matted down. In the vicinity of the blood stained highway, the warden gathered up some pieces of reddish brown deer hair. The texture and coloring of the hair conformed to that generally obtaining in wild deer in this area during the summer months.

During the evening of the same day, Warden Denton, accompanied by a New Hampshire police officer visited the home of the respondent in Woodsville, New Hampshire. The respondent voluntarily exhibited a light green Studebaker bearing New Hampshire registration GK 562. The vehicle had a V-emblem on the front grill. The officers inspected the interior of the automobile with the respondent's consent. The trunk was clean but on the edge or lip of this compartment, the warden detected and preserved particles of reddish brown deer hair. Other interior parts of the car were littered and dirty.

Specimens of deer hair taken from the roadway near the French trailer, and particles taken from a felt mat found near the carcass on the Whitcher farm were compared microscopically with hair taken from the deer carcass itself. They appeared identical to Dr. Pomar, the director of the division of Bacteriology of the State Health Department. Dr. Pomar testified to this examination and its result during the trial.

During the course of Warden Denton's visit to the respondent's home at Woodsville, the respondent at first denied that he was in the East Topsham-East Corinth area on the morning in question. After being informed by the officers that his car registration had been seen and recorded in this vicinity at that time, the respondent admitted he had been driving in the area at the time and place indicated.

The State produced evidence that identified the tire marks imprinted on the Whitcher driveway. The description of these marks conformed to photographs of the tire treads on the respondent's Studebaker.

The respondent did not testify and offered no evidence by way of defense. The trial court has certified the question of error in submitting both counts to the jury.

There is nothing more than strong suspicion to link the respondent to the light observed by Mrs. French in the field across the road from the trailer. No flashlight was found in the respondent's possession. Short of conjecture, there is nothing to establish that the respondent was in the field when the light was flashed or that he participated in the actual taking or location of wild deer. His subsequent presence nearby the scene of the offense is not sufficient to establish participation in the illegal use of the artificial light. State v. Orlandi, 106 Vt. 165, 171, 170 A. 908. And suspicion, however strong will not supply the place of evidence. State v. Foss, 110 Vt. 453, 458, 8 A.2d 648; State v. Boudreau, 111 Vt. 351, 361, 16 A.2d 262. The respondent's motion for verdict of acquittal as it relates to Count I of the information should have been granted.

The evidence in support of the second Count relating to illegal transportation of a wild deer out of season is of different substance and persuasion. It is not doubtful that a deer was killed in the filed near the French place and that it was transported from the scene of the kill. The respondent's admission that he traveled the highway at the time and place charged is not refuted. His means of conveyance was connected to the carcass of the game by expert testimony that compared the texture and color of the hair taken from the trunk with that found at the French place and that of the animal itself. The respondent's initial denial of his presence in the Topsham area of the time of the offense, and his later retraction when confronted by the fact that his car had been observed there, tends to show a consciousness of guilt. State v. Bradley, 64 Vt. 466, 470, 24 A. 1053; State v. Stacy, 104 Vt. 379, 398, 160 A. 257.

The quality of the evidence supplied by the multiple events and circumstances constructs a pattern of proof that rises to something substantially more than suspicion. It has the capability of convincing responsible jurors that protected game had been unlawfully transported and that the respondent was the conveyor. State v. Woolley, 109 Vt. 53, 63, 192 A. 1; State v. Perras, 117 Vt. 163, 167, 86 A.2d 544. Count 2 was properly submitted.

The remaining questions certified relate to the seizure of the respondent's automobile after the offense had been completed. Several days after the respondent's arrest and arraignment he was halted while operating his Studebaker on the public highway in Wells River, Vermont, en route to his place of employment. The game warden Denton, in the company of another enforcement officer seized the vehicle without warrant or other process, and has retained it in his possession since August 29, 1960. The respondent went before the Orange Municipal Court where his prosecution was pending and requested the court to order the return of his vehicle. The motion was denied and the question certified.

The issue involved is not concerned with the admissibility of evidence and the vehicle itself was not used for this purpose at the trial. The State seeks to justify the seizure on the strength of 10 V.S.A. § 3061. It is there provided:

'When firearms, jacks, artificial lights, vehicles and any other device used in the taking or transportation of such deer is seized or taken by an officer or warden, with or without a warrant, the officer or warden who makes such seizure shall forthwith give notice thereof to grand juror of the town in which such seizure is made or to the state's attorney of the county. Such grand juror or state's attorney shall...