State v. Bert Stacy

• Decision Date: 04 May 1932
• Parties: STATE v. BERT STACY
• Court: Vermont Supreme Court

160 A. 257

104 Vt. 379

STATE v. BERT STACY

Supreme Court of Vermont

May 4, 1932

February Term, 1932.

Criminal Law---Murder---Change of Venue---G. L. 2523, 2525---Necessity of Showing Reason for Change of Venue---Discretion of Superior Judge---Presumptions---Test as to Whether Discretion Has Been Abused---Newspaper Articles as Cause for Change of Venue---Effect of State Failing To File Answer or Counter Affidavit to Petition for Change of Venue---Motion for Change of Venue Not Evidence of Facts Therein Recited---Insufficiency of Facts To Show Abuse of Discretion---Ruling of Trial Court as To Making Objection---Witnesses---Competency with Respect to Age---Relevancy and Materiality of Evidence of Condition of Witness---Admissibility of Material Evidence Also Tending To Show Commission of Another Crime---Physical Evidence Corroborating Witness---Harmless Error---Necessity That Error Be Prejudicial To Justify Reversal---Effect of Failing To State Objections to Admission of Evidence When Exceptions Taken---Premeditation---Sufficiency of Evidence To Identify Weapon as One with Which Crime Was Committed---Effect of Admission of Evidence without Objection on Subsequent Objection and Exception to Similar Testimony---Motive---Insanity---Inference as to Mental Condition at Specific Time from Evidence of Mental Condition Prior or Subsequent Thereto---Remoteness of Testimony as Matter for Trial Court's Discretion---Necessity That Abuse of Discretion Must Appear To Secure Reversal---Hypothetical Question---Effect of Omitting in Question Part of Facts Shown---Question Failing To Assume Truth of Respondent's Testimony---Evidence as to Respondent's Sanity at Certain Time Not Prejudicial Where Respondent Made Similar Claim---Evidence as to Conversation on which Alienist Based in Part Opinion as to Respondent's Sanity---Admissibility of Evidence Obtained by Search without Warrant---Fourth and Fifth Amendments to Federal Constitution Inapplicable as Restrictions on State---Articles Ten and Eleven of Vermont Constitution No Bar to Admission of Things Material in Evidence Procured by Search without Warrant---Respondent Not Prejudiced by Original Admission of Evidence against Him Which Court Erroneously Struck from Record---Admission of Revolver and Ammunition To Identify and Describe Ammunition Which State Claimed Was Used in Commission of Crime---Argument of Counsel---Effect of Failure To State Grounds of Objection---Voluntary Intoxication as Not Excusing or Palliating Crime or Reducing Degree of Homicide---Falsification of Respondent as to His Whereabouts and Movements on Day of Murder---Instruction That Facts Did Not Justify Reducing Crime to Manslaughter---G. L 6802---Instructions as to Respondent Taking Witness Stand in Own Behalf---Objections to Instruction Not Raised Below---Refusal of Request for Instructions Made Out of Time---Sufficiency of In- struction on Irresistible Impulse---Duty of Court To Instruct on All Substantial Issues.

1. Doctrine of common law that court possesses inherent power to change venue of cause pending before it, when it appears necessary to procure fair and impartial trial, and that statutes which specifically confer this power are merely declaratory of common law, held not to obtain in Vermont.

2. County court has no power to grant motion for change of venue on behalf of one charged with murder, G. L. 2523 requiring such application to be made to superior judge, and, under G L. 2525, granting thereof is matter of discretion of judge to whom application is made.

3. At common law motion for change of venue was not granted on mere suggestion, or unless reason was fully established.

4. Ruling of superior judge on motion for change of venue on behalf of one charged with murder, being discretionary, will not be revised unless abuse of discretion is shown.

5. Contrary not appearing, superior judge will be presumed to have exercised his discretion in denying motion for change of venue made on behalf of one charged with murder.

6. In determining whether superior judge has abused discretion in overruling motion for change of venue, test is whether discretion was exercised on grounds or for reasons clearly untenable, or to extent clearly unreasonable.

7. Newspaper articles, even though denunciatory in character are not in themselves and in absence of evidence of existence of actual prejudice against accused, sufficient to require judge, in exercise of his discretion, to conclude that fair and impartial trial cannot be had.

8. That no answer or counter affidavit was filed by State, did not oblige judge to adopt inferences and opinions contained in respondent's unverified motion for change of venue, or to treat allegations as sufficiently proved.

9. Motion for change of venue is not evidence of matters it recites.

10. Denial of respondent's unverified motion for change of venue, held not abuse of discretion, where no supporting affidavit was filed with motion, no request made that testimony should be taken, and basis thereof was two newspaper articles stating that re- spondent had offered to plead guilty to murder in second degree, but that State refused to accept plea.

11. Ruling of trial court that, unless permission were given to do otherwise, all objections should be made from place where counsel stood, and not at bench and out of hearing of jury, held within discretionary power of court to supervise general conduct of trial.

12. Law fixes no limit of age which child must reach to be competent as witness, test being whether witness has sufficient intelligence and sense of duty of telling truth.

13. Competency of witness is preliminary question for court, rule being applicable to infant as well as to adult.

14. Decision as to competency of witness rests in discretion of court, and is not to be disturbed unless it appears to have been erroneous or founded upon error in law.

15. Where court, permitting child between age of six and seven years to testify to facts and incidents, including her having been shot by her stepfather, which had occurred only month before trial, carefully instructed jury as to care with which her testimony should be scrutinized, in view of her age, impressionable character of childish mind, and existence of powers of imagination in children out of proportion to other faculties, and warned against being led by natural sympathy to give it greater weight than it fairly deserved, held that rights of respondent were fully safeguarded.

16. Evidence of hearing respondent's young stepdaughter crying and finding her in bed, undressed and wounded, held material as tending to prove one step in State's theory of case that after shooting wife respondent had attempted to destroy stepdaughter because she was only witness to his knowledge who could testify to his presence at farm where crime was committed.

17. That evidence tended to show offense other than homicide charged against respondent, held not to affect its admissibility, where it legitimately tended to support charge for which he was on trial.

18. Evidence as to height from floor, when she was standing, of scars of wounds made by bullet on child's chest and back, held material as corroboration of child's testimony that she stood facing respondent when he shot her, and as bearing upon question whether bullet found upon window sill was one which had inflicted her wounds.

19. Testimony of witness as to when he first learned of injury to respondent's stepdaughter, who State claimed was shot and wounded by respondent immediately after he had murdered his wife, if error, held not prejudicial.

20. Admission of immaterial evidence alone, does not constitute reversible error, when no resulting prejudice is made to appear.

21. In prosecution for homicide, objections relating to admissibility of evidence tending to show that respondent purchased revolver and cartridges shortly before homicide, not shown by transcript to have been stated when exceptions were taken, are not available in Supreme Court, though briefed.

22. In such prosecution, evidence of purchase of revolver and cartridges by respondent shortly before homicide, held admissible as tending to show premeditation, there being evidence connecting weapon with crime.

23. In such prosecution, evidence held amply sufficient to sustain finding that fatal shot had come from respondent's revolver.

24. In such prosecution, evidence of purchase of revolver and cartridges by respondent shortly before homicide, held admissible to show that respondent had knowingly falsified in denying such purchase and denying that he possessed revolver, and in stating that he had some cartridges purchased some years prior at time shown to have been before they had been placed on market, for such falsification tended to show consciousness of guilt.

25. Where question objected to and admitted over exception had previously been asked and same answer given by same witness, without objection, error in its admission, if any, was harmless.

26. In prosecution of husband for murder of wife, original complaint in another court charging him with failure to support his wife, on which he was arrested two days before homicide, held material, in connection with evidence of respondent's anger because complaint had been filed, though such complaint was still pending and no disposition made of it, as tending to show motive.

27. In such prosecution, that complaint against respondent for non-support of wife, made two days before her murder, was not shown to have been made or caused to be made by her, held no valid objection to its admission to show motive, where fact that respondent understood that she made it or caused it to be made could be inferred from his statements.

28. Mental condition of responden...