State v. Ball

• Decision Date: 02 October 1956
• Docket Number: No. 1275,1275
• Citation: 126 A.2d 121,119 Vt. 306
• Parties: STATE of Vermont v. Bertha D. BALL.
• Court: Vermont Supreme Court

Page 121

126 A.2d 121

119 Vt. 306

STATE of Vermont v. Bertha D. BALL.

No. 1275.

Supreme Court of Vermont.

Oct. 2, 1956.

John W. Brockway, State's Attorney, White River Jct., for plaintiff.

William F. Kissell and James E. Bigelow, Bellows Falls, for defendant.

Before JEFFORDS, C. J., CLEARY, ADAMS and HULBURD, JJ., and SYLVESTER, Superior Judge.

CLEARY, Justice.

This is a criminal prosecution for the violation of what is known as 'The Blanket Act', V.S. 47, § 8468, which provides as follows: '8468. Parties found in bed together. A man with another man's wife, or a woman with another women's husband, found in bed together, under circumstances affording presumption of an illicit intention, shall each be imprisoned' etc. The respondent pleaded not guilty; trial was by jury with a verdict, judgment of guilty and sentence. The judgment, sentence and execution were respited and stayed and the cause passed to this Court. It is here on the respondent's exceptions. We shall dispose of these now relied upon in the order they appeared during the trial.

William F. Moody, the alleged particeps criminis, appeared as a state witness. The respondent objected to his attire as prejudicial which 'conveys to the jury certain punishment which ought to be meted out to both.' It does not appear what the attire was and, as the trial court stated, the question of punishment was for the court. Allowing the witness to appear, as then attired, was a matter of the trial court's discretion and no abuse of discretion appears so the exception saved is of no avail. After testifying that he and the respondent went to her house, that the respondent told him 'We will have the whole house to ourself,' that they both undressed and both got into the same bed, that while they were in bed there was a knock on the door and a bang, that Mrs. Ball got out of bed and went into another part of the house, that someone entered the house, that he got up, was sitting in a chair putting his pants on, got hit, must have been knocked out, and the next thing he remembered he was in another house nude, that he had never been a respondent or arrested, he was asked 'Where are you presently living?' and after objection and exception 'this being prejudicial to the respondent' was allowed to answer 'Vermont State Prison'. The question was improper and harmful to the respondent and the exception must be sustained. State v. Gargano, 99 Conn. 103, 121 A. 657, 659, 660; Commonwealth v. Thompson, 99 Mass. 444, 446; State v. Allison, 175 Minn. 218, 220 N.W. 563, 61 A.L.R. 970, 972.

The respondent's husband testified he arrived home in his automobile sometime after one o'clock in the morning and found the front screen door locked; he rapped, received no answer, went to bedroom window and listened. He was then asked, 'What did you hear?' After objection 'on the ground of the Vermont statute privilege of husband and wife as to communications between them and other persons' he was allowed to answer: 'I heard my wife say 'Bill, up, my husband just drove in the yard.' The husband went to the back door of the house, forced it open, turned the switch light on in the kitchen, saw his wife running from the bedroom, wearing a silk nightdress, saw Moody getting out of bed, saw him get in a chair with his pants in his hands, and saw the respondent's clothing at the foot of the bed. V.S. 47, § 1738 provides that neither a husband nor a wife shall be allowed to testify against the other as to a statement, conversation, letter or other communication made to the other or to another person. Here the question objected to called for the respondent's husband to testify as to a communication made by the respondent to another person. The language of the statute we have mentioned is plain and its meaning clear. After objection it was error for the trial court to allow the respondent's husband to answer and the exception taken to this ruling must be sustained.

At the close of all the evidence the trial court denied the respondent's motion for a directed verdict. The motion was on three grounds. The first two grounds had to do with the sufficiency of the information and the statute under which the complaint was brought. These questions could not be raised on a motion for a directed verdict. Such a motion is in the nature of a demurrer to the evidence and brings before the court the question of the sufficiency of the evidence to support the allegations of the information but not the sufficiency of the allegations in the information. Having joined issue by her plea of not guilty the issue was as to the truth of the facts alleged and not their sufficiency in law. State v. Perkins, 88 Vt. 121, 125, 92 A. 1; State v. Rosenberg, 88 Vt. 223, 232, 233, 92 A. 145; State v. Colby, 98 Vt. 96, 97, 126 A. 510; State v. Cocklin, 109 Vt. 207, 215, 216, 194 A. 378. The third ground was that there was no evidence that anybody found the respondent and Moody in bed together. From the facts we have related supra, with the reasonable inferences to be drawn therefrom, the evidence was sufficient to justify a jury, acting fairly and reasonably, to find that the respondent and Moody were found in bed together. There was no error in the court's ruling denying the motion for a directed verdict. In briefing the motion for a directed verdict the respondent's brief argues circumstantial evidence of an illicit intention, presumption of an illicit intention and adulterous disposition. None of these arguments are for consideration because they were not made grounds of the motion in the court below. Downing v. Wimble, 97 Vt. 390, 393, 123 A. 433; Union Cooperative Store v. Fumagalli, 107 Vt. 145, 148, 175 A. 847; Bonneau v. Russell, 117 Vt. 134, 136, 85 A.2d 569.

In her brief the respondent refers to her requests to charge the jury but the transcript shows no exception to the failure of the trial court to comply with the requests to charge so no question is before us regarding them. City Electrical Service & Equipment Co. v. Estey Organ Co., 117 Vt. 318, 319, 91 A.2d 562. The respondent saved two exceptions to the court's charge. The first exception was as follows: 'Respondent objects to the Court's charge that in this case it is not necessary that there be any intent to have sexual intercourse it being enough that the parties were in bed together.' The court did not charge what the respondent claimed in her first exception to the charge. The language of the charge was as follows: 'In order to constitute the offense that is here charged, it is not necessary that the respondent should have had sexual intercourse with her companion. It is not necessary that you should find that she even had the intention to do so. It is enough if there two persons were found in bed together under such circumstances as would afford a presumption that they had an illicit intention.' 'So in order to find the respondent guilty you must determine from all the evidence, * * *, if you find that they were in bed, that the circumstances were of such a nature as to cause you to presume that they had an intention to have unlawful sexual intercourse with each other.' This was nearly identical with the charge approved by this Court in State v. Vadney, 108 Vt. 299, 302-303, 187 A. 381.

In her brief the respondent concedes that 'no intention need be proved.' The exception is not sustained.

The respondent has not briefed her second exception to the charge so it is waived. Loeb v. Loeb, 118 Vt. 472, 478, 114 A.2d 518; Hanley v. United Steel Workers of America, 118 Vt. 378, 379, 110 A.2d 728; Sivret v. Knight, 118 Vt. 343, 349, 109 A.2d 495.

After verdict and before judgment the respondent filed motions to set aside the verdict and for a new trial; for judgment notwithstanding the verdict; and in arrest of judgment. It is unnecessary to consider the motion to set aside the verdict since a new trial must be granted for errors regarding the admission of evidence.

The only ground stated in the motion for judgment notwithstanding...