State v. Americo Orlandi

• Decision Date: 06 February 1934
• Citation: 170 A. 908,106 Vt. 165
• Parties: STATE v. AMERICO ORLANDI ET AL
• Court: Vermont Supreme Court

170 A. 908

106 Vt. 165

STATE v. AMERICO ORLANDI ET AL

Supreme Court of Vermont

February 6, 1934

November 1933.

Special Term at Rutland, November, 1933.

Criminal Law---Evidence---Judicial Notice---Breach of the Peace---Liability Where Several Persons Combine under Common Understanding and with Common Purpose To Do Illegal Act---Principals in Commission of Misdemeanor---What Is Necessary That Presence at Scene of Crime May Constitute Participation---Criminal Responsibility for Acts of Others in Prosecution of Common Design To Commit Assault upon Another---Circumstantial Evidence To Prove Aiding and Abetting Commission of Crime and To Show Common Design---Sufficiency of Evidence To Show Common Design---Sufficiency of Evidence as to Actions of Respondent To Show Action in Concert with Others To Commit Offense---Harmless Error---Identification of Respondent---Excepting Party Confined to Specific Objections Made Below---Objection as to Indefiniteness of Question---Admission of Evidence Rendered Harmless by Reason of Claims Made---Sufficiency of Identification of Respondent---Statement by Witness of His Impression of Fact---Conviction of Crime without Positive Identification of Respondent as One Committing Offense by Any One Witness---Weight of Evidence as to Identification for Jury---Trial---Instructions to Jury---Effect of Failure To Request Instruction---Evidence as to Identity and Participation of One of Several Respondents in Commission of Crime as Admissible against All Where Evidence Tends To Show Common Design---Admission of Automobile as Exhibit in Corroboration of Witness' Testimony as to Damage Thereto---Instructions To Be Considered as Whole, Not Piecemeal---Sufficiency of Instruction as to Reasonable Doubt---Self-defense---Jury Question.

1. Court may take judicial notice of notorious fact of existence of granite cutters' strike at certain time and place within State.

2. In prosecution of several respondents for breach of the peace consisting of assult, evidence that two men, of whom one was one of respondents, had clubs, and that such respondent broke windows and windshield of automobile of prosecuting witness and joined in pursuit when latter fled from car, held sufficient to constitute breach of the peace and warrant verdict of guilty against such respondent, though prosecuting witness could not say which respondent struck him.

3. In such prosecution, act of respondent striking at another with rifle, and use of vile language and threat at same time, held to constitute breach of the peace.

4. Where several persons combine under common understanding and with common purpose to do illegal act, every one is responsible for acts of each and all who participate with him in execution of unlawful design.

5. All who knowingly and intentionally participate in commission of misdemeanor are principals, and may be convicted thereof either separately or jointly.

6. Presence at scene of crime is not alone sufficient to establish participation, or aiding and abetting therein unless there is something to show that person so present in some way has procured, incited, or encouraged act done by principal perpetrator, but where such presence is by preconcert with design to encourage, incite, or assist, if necessary, in commission of crime, there is participation though no particular act is shown.

7. In prosecution of several respondents for breach of the peace consisting of assault, when evidence is sufficient to establish beyond reasonable doubt that several persons have formed common design to assault another, and are present for that purpose at place agreed upon for commission of offense each one is criminally responsible for acts of others in prosecution of design and incidental to its execution as one of its natural consequences, even though not intended as part of original plan.

8. Fact of complicity in or aiding and abetting commission of crime may be proved by circumstantial evidence.

9. Common design to commit crime need not be result of express agreement between respondents, but proof of implied understanding by circumstantial evidence is sufficient.

10. In prosecution of several respondents for breach of the peace consisting of assault, held that there was ample evidence tend-

ing to show common design to perform illegal act so as to make question one for jury.

11. In such prosecution, evidence held to justify inference that one of respondents was to take position so as to cut off retreat of prosecuting witness, if required, and that he endeavored so to do, but was frustrated by a fall, actions of this respondent being in themselves sufficient basis for inference that he was acting in concert with others.

12. In such prosecution, error, if any, in admission of testimony held harmless where same witness both previously and subsequently testified to same facts without objection or exception, and another witness also subsequently testified thereto without objection.

13. In such prosecution, testimony of prosecuting witness on direct examination that he had seen one of respondents running toward certain house coming off from bank, and that he was "trying to get ahead of me to head me off," held properly admitted over objection that prosecuting witness had said that he was unable to identify four men who were grouped around his automobile, since evidence showed this respondent was not one of that group.

14. Ground of exception to admission of evidence not stated at trial is not available to excepting party in Supreme Court, he being confined to specific objections made below.

15. In prosecution of several respondents for breach of the peace consisting of assault, question asked prosecuting witness and answered negatively, as to whether men who came to his automobile with clubs hit car any other place but windows, held not objectionable as indefinite because specific respondents so armed were not identified, respondent having testified that one of respondents and another person whom he could not identify had clubs, lack of identification of latter not operating to exclude question.

16. In such prosecution, admission of foregoing question held harmless, since no claim was made that any injury beyond breaking of windows and windshield was done to automobile.

17. In such prosecution, identification by witness of one of respondents as person who had followed prosecuting witness to house, called him vile name, and said he would "get him," by pointing out such respondent as person who "looks like him," and stating that witness "believed" such respondent was man, held sufficient to justify admission of testimony.

18. Witness may give his impression of fact, although he will not state positively that fact is so, although the fainter such impression, the less its weight as evidence.

19. In prosecution for crime it is unnecessary that any one witness should distinctly swear that respondent was person who committed offense, if all testimony, on comparison of its details and particulars, identifies him as offender.

20. In prosecution of several respondents for breach of the peace consisting of assault, weight of evidence tending to identify one of respondents as participant therein, held for jury.

21. In such prosecution, where evidence tending to identify one of several respondents as participant in crime was received as against him alone, held that other respondents had no cause to complain because jury was not told to disregard such evidence as to them, having made no request for such instructions.

22. In such prosecution, evidence tending to identify one of several respondents as participant in crime and received against him alone, was also admissible as against all respondents, there being evidence tending to show common design.

23. In such prosecution, admission of prosecuting witness' automobile, with its windows and windshield broken, as an exhibit, and permitting jury to inspect it, over objection of all but one of respondents that there was no evidence connecting any of them with damage to car, held without error, there being evidence from which jury could infer community of purpose, in consequence of which one of them had done such damage, and evidence also being admissible in corroboration of testimony of prosecuting witness.

24. Charge of court to jury is not to be construed piecemeal, and instruction claimed to be erroneous must be read in light of what is elsewhere said upon subject.

25. Instruction that if State had proved such facts as in jury's judgment warranted conviction, their verdict should be guilty, excepted to on ground that it permitted jury to return verdict of guilty notwithstanding they entertained a reasonable doubt, held without error in view of previous parts of charge.

26. In prosecution of several respondents for breach of the peace consisting of assault, where there was conflict of evidence as to whether prosecuting witness had fired at respondents before or after they congregated around his automobile, two of them armed with clubs, and whether he or one of them broke windows, question of self-defense was for jury.

INFORMATION for breach of the peace consisting of assault. Plea, not guilty. Trial by jury at the March Term, 1933, Washington County. Bicknell, J., presiding. Verdict, guilty, and judgment thereon. The respondents excepted. The opinion states the case.

Exceptions overruled. Let execution be done.

Fred E. Gleason for the respondents.

Webster E. Miller, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

These respondents were tried together, and convicted, of a breach of the peace which consisted of an assault upon Sidney Rigg. Two others, Saldi and Ortiz, were...