State v. Averill
| Decision Date | 09 October 1911 |
| Citation | 85 Vt. 115,81 A. 461 |
| Parties | STATE v. AVERILL. |
| Court | Vermont Supreme Court |
Exceptions from Franklin County Court; Willard W. Miles, Judge.
Josephine Averill was convicted of manslaughter, and brings exceptions, and petitions for new trial. Affirmed, and petition for new trial dismissed.
Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.
John G. Sargent, Atty. Gen., and George M. Hogan, State's Atty., for the State.
M. H. Alexander and C. G. Austin & Sons, for respondent.
The indictment on which respondent was tried contains two counts, each charging her with murder in the first degree, by shooting Frank C. Averill at St Albans on the 20th day of October, 1910. Verdict, guilty of manslaughter, and judgment thereon.
It appeared that the deceased and the respondent were husband and wife. The state called as a witness one Mrs. Delvina Hastings, and offered to show by her that she and her husband lived on a farm at Sunapee, N. H., where the respondent and her husband lived for four or five years; that the witness and her husband were there as tenants from the fall of 1907 about a year; that while there she heard the respondent make threats against the life of her husband, hearing her say she would kill him if he did not do certain things. The court asked, "What things?" The state's attorney answered, "That had to do in part with the leasing of the farm and their own private affairs, not all of which she heard; that the respondent is a loud talking woman; that she frequently became angry with her husband, and I offer to show also that the witness has seen her seize hold of him by the coat collar and yank him around, put him in a chair and on the lounge, in connection with threats she heard her make; that these threats were in summer of 1908." Objection was made to this offer (1) because it is an attack upon the character of the respondent, which is not in issue; (2) because it does not tend to show her mental condition at the time of the alleged killing; (3) "because not the whole of the conversation can be stated, and, if the whole, might be perhaps a different color or interpretation would be given to what she said;" and (4) because it opens up a collateral issue, and makes it necessary to try each one of these alleged occasions to ascertain whether she had the intent at the times she made the threats or not. The state disclaimed any purpose of attacking her character, or of going into collateral matters.
Addressing the state's attorney, the court said: "You offer to show that while she was residing there at a certain time this witness heard her make a threat to kill her husband?" To which the state's attorney answered: The court: "Then come right to that point." An exception was saved. Subject to the objection made and the exception taken, all inquiry respecting threats was received. The witness testified that in the summer time of the year of 1908, on the place where they all lived together, she heard the respondent make threats to her husband, Frank C. Averill. The witness was then asked: "What was the threat, and what did you hear her say?" The witness answered: "She said she would kill Frank if he didn't do so and so, when she was angry." The state objected to the answer, and moved to strike out "the part about being angry." The court ruled, granting the motion unless the respondent wished to have that part of the answer stand; and, no objection being made to striking it out, the motion was granted. The witness further testified that she heard the respondent make threats twice. The question was asked: "Did you hear anything else she said at the time she made the threats?" Here the respondent's attorney objected, saying: "If they undertake to show the entire conversation, we do not object, but I take it they want to show a part of it and leave out a part, and we object to it." To which the court replied: "You may call out in cross-examination such of the conversation as took place." No objection was made nor exception taken to this course of procedure. The witness then testified that the threat she heard the respondent make on the second occasion was: "I will kill you, Prank, if you don't put them out of the house." Under the same offer, objection, ruling, and exception as were made respecting Mrs. Hastings' testimony, her son, also a witness for the state, was permitted to testify that he heard the respondent threaten to shoot her husband in June or July of 1908. But, before this evidence was offered and received, the respondent's counsel had called out from the state's witness evidence tending to show love and affection on the part of the respondent for her husband, "and that they had been loving and affectionate from their early acquaintance."
It was urged in argument that the threats of the respondent thus shown were conditional, and that, in order to make them admissible in evidence, it was incumbent on the state to show that the conditions forming the basis had been complied with. Whether this is so or not we are not called upon to consider, for the objection to the evidence was not put upon this ground. In cases of homicide, previous threats by the accused to kill the deceased are always held admissible to show the state of the mind of the accused, his intent to kill, and his malice against the deceased at the time of the homicide. The remoteness of the threats in point of time does not affect their competency. It goes only to the weight of the evidence. State v. Bradley, 64 Vt. 466, 24 Atl. 1053; Id., 67 Vt. 465, 32 Atl. 238; Cribbo v. State, 86 Ala. 613, 6 South. 109; Redd v. State, 68 Ala. 492; State v. Hoyt, 46 Conn. 330; Commonwealth v. Holmes, 157 Mass. 233, 32 N. E. 6, 34 Am. St. Rep. 270; Commonwealth v. Goodwin, 14 Gray (Mass.) 55; Commonwealth v. Quinn, 150 Mass. 401, 23 N. E. 54; State v. Porter, 213 Mo. 43, 111 S. W. 529, 127 Am. St. Rep. 589. And, since the matter of such threats had such a connection with the issue as allowed them to be given in evidence, no collateral issue was thereby raised. Comstock's Adm'r v. Jacobs, 84 Vt. 281, 78 Atl. 1017.
Nor within the meaning of the law was the evidence in its declared purpose an attack upon the respondent's character.
The rule that the prosecutor cannot impeach the character of the accused until the latter has adduced evidence to support it has reference to the general character restricted to the trait which is in issue. It has no reference to evidence otherwise having a legitimate bearing on the guilt of the accused, and thus offered.
The third objection, "because not the whole of the conversation can be stated," had reference to the state's attorney's answer to the court's inquiry, "What things?" The answer so far as need be particularly noticed in this connection was "that had to do in part with the leasing of the farm and their own private affairs, not all of which she heard." It had no reference to the witness not stating in direct examination all she did hear of the conversation. That question was not raised until, as before seen, near the close of the direct examination of the witness, and then to the ruling (that the respondent's counsel might call out in cross-examination such of the conversation as took place) no exception was taken.
The fact that the witness did not hear all the respondent said does not render her testimony incompetent. Commonwealth v. Pitsinger, 110 Mass. 101; Commonwealth v. Taylor, 129 Pa. 534, 18 Atl. 558.
Mrs. Lucina Bird, a witness for the state, testified in direct examination, among other things, that, after the homicide, she was present with the respondent in an outhouse, to which they had gone during the time that the prosecuting officers and the police officers were at the respondent's house to arrest her, the afternoon of October 22d; that while there she saw the respondent remove the petticoat she had worn the night of the shooting, and put it into a can, and cover it with papers, narrating what the respondent said at the time of doing so; and that the witness afterwards pointed out the petticoat to the police officer who produced it in court. In cross-examination the witness was asked: "Was there any statement or expression by her (respondent) or any conduct on her part in connection with that act—the removal of the petticoat and putting it into the can—that had the appearance of a desire to hide the petticoat?" The question was excluded on the ground that it called for a characterization of the act So far as anything appears, the witness could and did sufficiently detail and describe all that the respondent said and did at the time and place named to enable the jury to form intelligent conclusions from them. The conclusions of the witness called for by the question were therefore properly excluded. Clifford v. Richardson, 18 Vt. 620; Cavendish v. Troy, 41 Vt. 99; Bain v. Cushman, 60 Vt. 343. 15 Atl. 171; Bishop v. Readsboro Chair Mfg. Co., 85 Vt. ——, 81 Atl. 454. It is urged, however, that the question called for the appearance of the respondent at the time of her arrest, and hence it was proper, even though it called for the judgment or opinion of the witness. An analysis of the question asked shows it really to contain three co-ordinate questions disjunctively connected, only the first of which need be stated. It amounted to this: Was there any statement by the respondent in connection with the removal of the petticoat, and putting it into the can, that had the appearance of a desire to hide the petticoat? The witness having narrated what the respondent said in that connection, it was the province of the jury to say what those sayings indicated.
This element of the question being improper it was not error to exclude the entire question. Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 410, 74 Atl. 99.
The respondent testified in her own behalf. In cross-examination, her attention being...
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