State v. Apan

• Decision Date: 04 May 1928
• Citation: 141 A. 686
• Parties: STATE v. APAN.
• Court: Vermont Supreme Court

141 A. 686

STATE

v. APAN.

Supreme Court of Vermont. Washington.

May 4, 1928.

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Exceptions from Washington County Court; Warner A. Graham, Judge.

Silas Lapan was convicted of murder in the second degree, and he brings exceptions. Judgment that there is no error, and that respondent take nothing.

Argued before WATSON, C. J, and POWERS, SLACK, MOULTON, and CHASE, JJ.

J. Ward Carver, Atty. Gen, for the State.

Burton E. Bailey and H. C. Shurtleff, both of Montpelier, for respondent.

POWEBS, J. The respondent was convicted of murder in the second degree. He was sentenced to life imprisonment in the state prison, and is now in execution. The victim of the homicide was Ivon Burnham, who lived alone on a farm in the town of Calais. His dead Body was found in his house on the morning after he was killed, under circumstances and surroundings unmistakably indicating a most vicious and inhuman killing—the brutal and distressing details of which will be recited herein only so far as may be necessary to a proper discussion of the legal questions presented for review.

1. Carroll Lamb was the health officer of the town of Calais, and was called to the Burnham place on the morning of July 5, when the body was discovered. It appeared that his arrival there was so delayed that, in all probability, the blood found on the floor of the room where the body lay must have been clotted or dried down. He was a witness for the state, and in his direct examination testified that in places the blood was deep enough to be dipped up with a spoon, and that he could see "liquid" blood on the floor near the fireplace. In cross-examination, he reiterated this. Whereupon the cross-examiner asked the witness:

"You still say, after its taking you an hour to get up there, and assuming that that blood was spilled before Mr. Guernsey came to see you, that it was still liquid blood, do you?"

This question was excluded, and the respondent excepted. There was no error in this ruling. The witness had repeatedly testified that it was liquid blood, and it was within the court's discretion to allow or disallow the repetition of the question. Landry v. Hubert, 100 Vt. 268, 137 A. 97, 100; State v. Williams, 94 Vt. 423, 434, 111 A. 701; Buss V. Good 90 Vt. 236, 240, 97 A. 987; State V. Truba, 88 Vt. 557, 560, 93 A. 293. The cross-examiner also asked the witness this question:

"Now, if we assume that this blood was spilled on that floor before Mr. Guernsey came to see you, you still think it would be liquid blood, do you, after it had been there an hour?"

This question was excluded, and the respondent excepted. The opinion of the witness on the subject referred to was wholly immaterial. He had not assumed to have or express an opinion on that subject. If, as argued, it is a matter of common knowledge that the blood would have been clotted before the witness' arrival at the Burnham place, the witness would be sufficiently impeached without reference to his opinion. Not only this, but the respondent's brief shows that the state's medical witness, Dr. Whitney, testified that human blood clots in about ten minutes. It is perfectly apparent that the respondent had the full benefit of whatever there was in this matter that would be to his advantage, if anything, and the exception is not sustained.

2. It appears that the respondent and his brother Fred, both of whom were on the premises when the murder was committed, left there in the latter's car, with the respondent sitting on the right-hand side, and Fred driving. The floor board of this car was removed by an officer and delivered to Dr. Whitney, an expert chemist, who testified that he tested spots found on the side where the respondent sat for blood, and that a weak positive result was obtained. In cross-examination, it was disclosed that the test did not show whether this was human or animal blood. Thereupon the respondent moved to strike out the testimony about it. This motion was overruled, and the respondent excepted. It later appeared that shortly before the murder Fred Lapan's dog cut its foot, and that it had ridden in this car. The floor board was offered in evidence, but, being objected to on the ground that the blood found might be that of the dog, the offer was withdrawn, and nothing was claimed for the evidence that had been admitted. As the case stood when this evidence was received, it was admissible; and the rule is that, when evidence is admitted subject to exception, the excepting party, in order to secure a reversal, must make it appear that in the then present aspect of the case it was inadmissible. Foster's Ex'rs v. Dickenson, 64 Vt. 233, 253, 24 A. 253. And, on the other hand, when evidence is so excluded, the excepting party must show that in the then present aspect of the case it was admissible. Foote v. Woodworth, 66 Vt. 216, 221, 28 A. 1034. In either case, subsequent events during the progress of the trial may cure any error in the ruling. Thus the admission of evidence, legitimate when received, does not become erroneous simply bcause afterwards, in the course of the trial, it becomes immaterial. Giffen v. Barr, 60 Vt. 599, 601, 15 A. 190. So, too, error in admitting irrelevant evidence is cured by a subsequent amendment of the pleadings so as to make it admissible. Niles v. Danforth, 97 Vt. 88, 94, 122 A. 498. And the exclusion of legitimate evidence does not constitute reversible error, if it is subsequently admitted. Ide v. Boston & Maine Railroad, 83 Vt. 66, 95, 74 A. 401.

3. Dr. Whitney also testified about the blood spots on the footboard in a way to indicate that some attempt might have been made to remove them. But for the reasons already given, neither error nor harm resulted.

4. Among the articles used by the state as exhibits was a blood-stained glass lamp. A day or two after the murder, E. C. Comstock, a deputy sheriff, took this lamp from the Burnham house, where it was found, to his office in Barre, and had continuous and exclusive custody of the same until November 6, when he took it to Boston and delivered it to Roscoe C. Hill, of the Massachusetts Bureau for Identification of Criminals. According to Comstock's testimony, it was then in the same condition as when he took it. He testified as a witness for the state that on July 7 he took two imprints of a part of the palm of the respondent's right hand. These imprints, he said, were taken to Boston with the lamp, and delivered to Mr. Hill. They were produced at the trial. When Comstock was asked if they were correct imprints, objection was made on the ground that it had not appeared how they were taken. Whereupon the court remarked that "it is a generally recognized science if properly taken. We will assume they are correct." It is altogether probable that what the court said was, "It is a generally recognized science. If properly taken, we will assume they are correct." But this court cannot ignore the transcript, even in the matter of punctuation, and must take it as it reads. See Wilson v. Barrows, 96 Vt. 344, 346, 119 A. 422. To so much of the statement as referred to its being "a generally recognized science," the respondent excepted. No ground of exception was then specified, and the only one here urged is that no evidence had been given "as to the state of this so-called science." No such evidence was required. The subject is one of the things that does not have to be proved. That the system of finger print identification rests upon a substantial scientific basis and that it is in general use in criminal trials are facts of which courts take judicial notice. People v. Jennings, 252 Ill. 534, 96 N. E. 1077, 43 L. R. A. (N. S.) 1206, 1212; Lamble v. State, 96 N. J. Law, 231, 114 A. 346, 348.

See, also, Moon v. State, 22 Ariz. 418, 198 P. 288, 16 A. L. R. 362, 367, wherein People v. Jennings is quoted on this point with apparent approval, and Parker v. The King (Vict. S. C.) 3 B. R. C. 68, 69, wherein it is said that a finger print is in reality an unforgeable signature—the doctrine of which was approved by this court in Davis v. Dunn, 90 Vt. 253, 259, 98 A. 81, Ann. Cas. 1918D, 994. This knowledge of the courts goes so far as to enable them to say, without proof, that the imprint of the palm side of the human hand, when fairly taken, presents reliable, individual, and unchanging characteristics of the papillary ridges; and that, when those are correctly read and interpreted by one skilled in the science, they afford valuable evidence on questions of identity. To the assumption of the court that the prints in question were correct, no exception was taken.

5. In his direct examination, Officer Comstock testified that he took some finger prints, as well as palm prints, of the respondent's hand. So far as the finger prints are concerned, there was no further reference to them in the direct examination. They were not produced in court, nor was anything claimed for them. In cross-examination it appeared that, having dusted the lamp with a gilt powder, the witness compared the respondent's finger prints with prints on the lamp then distinctly showing, using as an aid a magnifying glass, which he produced; and that, as a result of this comparison, he made the palm prints above referred to. It was admitted that these finger prints could not be seen by the naked eye. In cross-examination, he was asked if he compared the respondent's finger prints with the print on the lamp; if the prints showed distinctly; and if it was not for the reason that the lamp showed no distinct prints that he took the second prints—the palm prints. All this unmistakably shows that both cross-examiner and witness were confining their attention to the finger prints, and making no reference to the palm prints. This further appears from the fact that the court allowed this line of cross-examination on the ground that it bore "upon the reason for his taking the second (palm)...