State v. Barrett, 173-70
| Citation | 130 Vt. 197,290 A.2d 14 |
| Decision Date | 05 April 1972 |
| Docket Number | No. 173-70,173-70 |
| Parties | STATE of Vermont v. Charles R. BARRETT. |
| Court | Vermont Supreme Court |
James M. Jeffords, Atty. Gen., and William T. Keefe, asst. Atty. Gen., for the state.
Langrock & Sperry, Middlebury, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
Charles R. Barrett was indicted for the charge of first degree murder. Trial was by jury at the Franklin County Court on October 28 to November 1, 1969, resulting in a verdict of 'guilty as charged.' Upon appeal to this Court, the conviction was reversed, and a second trial was held in November, 1970, in the Addison County Court. The defendant was found guilty of murder in the second degree. Post conviction motions were denied, and the case is again on appeal in this Court.
A concise description of much of the factual background of the first case can be found in our earlier decision, State v. Barrett, 128 Vt. 458, 459, 266 A.2d 441.
The first claim of error on the part of the defendant is that the trial court erred in denying the defendant's motion for a directed verdict on the charge of first degree and second degree murder at the close of the State's case, and that such claimed error was further compounded by denial of the same motion at the close of all of the evidence and by denial of defendant's post trial motions.
It is not necessary for us to consider the various motions of the defendant for a directed verdict on the charge of first degree murder for the defendant was not convicted of such crime, and error, if any, on the part of the trial court, in view of this circumstance, would be harmless to the defendant.
It is the contention of the defendant that in order for a person to be convicted of second degree murder there must be proof beyond a reasonable doubt that the unlawful killing took place with malice deliberately conceived. State v. McDonnell, 32 Vt. 491, 544. Defendant claims that the facts in the instant case are markedly similar to those in McDonnell. However, with this statement we are not in full agreement. In the first place the exceptions of the defendant, in McDonnell, were based upon claimed error in the charge of the court, in that the jury was not instructed upon the distinction between manslaughter and murder, and it was for this failure in the instructions of the court that the case was reversed. Secondly, there were numerous eyewitnesses to the homicide in McDonnell, with the evidence being that the deceased had received only one thrust or stab from a knife held by the defendant, while the only evidence in the instant case as to the happening of the killing of the deceased, Coombs, came from the testimony of the defendant. Further, both the physical evidence and the testimony in the instant case was that the deceased had received some fifty wounds from a sharp instrument.
The defendant here does not claim error on the part of the lower court in its charge to the jury on the distinction between murder first, murder second and manslaughter. What the defendant does claim is that the factual situation in the instant case did not disclose malice on the part of the defendant toward the deceased, and that in the absence of such showing, the lower court should have directed a verdict in favor of the defendant on second degree murder. Murder in the second degree involves malice, but not premeditation. State v. Bradley, 64 Vt. 466, 472, 24 A. 1053.
. Giguere, Admr. v. Rosselot et al, 110 Vt. 173, 184, 3 A.2d 538.
The only two witnesses to the occurrences that led to the death of Clifton B. Coombs were Coombs and the defendant, Barrett. Coombs being dead, this left Barrett, the accused killer, as the sole surviving witness. It was Barrett's choice to take the witness stand as a witness in his own behalf and his evidence was the only eyewitness account of the actual killing which was presented to the jury. There was other evidence in the case that both Coombs and Barrett had been drinking in various establishments in St. Albans on the evening of the homicide, but not in each other's company. In fact, the evidence was that the two men were not acquainted. At some time in the early morning hours of May 18, 1968, the two men were seen together, apparently engaged in conversation. But from this point on the only direct evidence of what later occurred is from the testimony of Barrett.
Barrett testified that prior to the time he met Coombs he had been in a fight with another individual, which, the witness described as a arm to steady him. Then Coombs suddenly broke away from him, turned, and came toward Barrett with a knife in his hand. Barrett stated he started to run away, slipped and fell, and that Coombs came on top of him with the knife in his hand. Barrett then 'backhanded' him and felt the knife go into the chest of Coombs.
Barrett testified that from this point...
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Dunham, In re, 83-418
...472, 24 A. 1053 (1892); State v. Carr, 53 Vt. 37, 46-47 (1880). We have reiterated this principle more recently. State v. Barrett, 130 Vt. 197, 199, 290 A.2d 14, 15 (1972). This is in accord with the majority of American jurisdictions. W. Lafave & A. Scott, Criminal Law 562-68 (1972); 40 C.......
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State v. King
...its discretion in rejecting defendant's version of how the fight began and finding an absence of provocation. Cf. State v. Barrett, 130 Vt. 197, 201, 290 A.2d 14, 16 (1972) (where defendant provided only direct evidence of how killing occurred, and his testimony was necessarily undisputed, ......
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State v. Camley
...v. Prime, 137 Vt. 340, 342, 403 A.2d 270, 272 (1979); State v. Woodard, 134 Vt. 154, 158, 353 A.2d 321, 323 (1976); State v. Barrett, 130 Vt. 197, 201, 290 A.2d 14, 16 (1972). In Woodard we declared no right more fundamental, and affirmed the court's duty, when confronted with a record disc......