State v. Boudreau, 918.

• Decision Date: 06 November 1940
• Docket Number: No. 918.,918.
• Citation: 16 A.2d 262
• Parties: STATE v. BOUDREAU.
• Court: Vermont Supreme Court

16 A.2d 262

STATE

v. BOUDREAU.

No. 918.

Supreme Court of Vermont. Orleans.

Nov. 6, 1940.

Exceptions from Orleans County Court; Charles B. Adams, Judge.

Albert Boudreau was charged with burglary and larceny. Judgment granting the defendant's motion for a directed verdict of not guilty, and the State brings exceptions.

Affirmed.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Maxwell Baton, State's Atty., of Newport, for the State.

Hubert Wells, of North Troy, and Hubert S. Pierce, of Newport, for respondent.

JEFFORDS, Justice.

The respondent was charged with burglary and larceny. At the close of the State's evidence a motion was made for a directed verdict of not guilty on the ground that there was no evidence in the case to warrant a conviction on either charge. This motion was granted and the case is here on exceptions by the State.

The material facts as disclosed by the evidence are as follows: The store of W. E. Brock, located in Troy, was broken into on the night of December 17, 1939, and merchandise and money was stolen. About two weeks later one Blanchard came to Sanville, a constable, and confessed to the crime and implicated one Lafreniere in its commission. Blanchard told the constable that part of the stolen goods were concealed at the house of the respondent and told the officer where they could be found. Sanville and Brock then went to the house of the respondent and finding him home asked if he had any objection to them looking over the place to see what they could find. He told them to go ahead and "look all you are amind to". The stolen goods were found in a hole off from a back chamber. The entrance to the space was concealed by sap buckets.

Blanchard was lodged in jail. Lafreniere was apprehended at his home in Rhode Island and brought back to this State and placed in jail with Blanchard. Both gave signed statements involving the respondent in the burglary and larceny and he was arrested and placed in confinement with the other two.

At the trial the first witness called was Brock who testified concerning the articles that were stolen and their value and as to the finding of a part of the same in a box which had been in his store on the night in question.

The next witness was Blanchard whose testimony in substance was that he had worked off and on for the respondent for several years prior to the burglary and was working for and staying at the respondent's home at the time of the same. That Lafreniere and he had talked several times about breaking into the Brock store. On the evening of December 17, respondent and his wife, Lafreniere and Blanchard drove in respondent's car to visit one Cantell. They returned to respondent's house at about 10:30 and all of them retired for the night. Blanchard and Lafreniere laid down on their bed for a short time then got up and went out of the house and took respondent's car which was pushed for a short distance so as not to awaken respondent. Blanchard then drove the car to a place near the store which they broke into about midnight and then returned to respondent's house and concealed their loot in the place where part of it was later found. He told about the equal division of the stolen goods between himself and Lafreniere and about the burning of some in the furnace at respondent's house one night when Lafreniere and he were there alone. He denied that the respondent had any part in the breaking.

Blanchard also testified that he gave himself up to the officer the day that he had taken respondent's car without permission and had broken it.

It appeared from his testimony that while in jail he had given to the state's attorney a written statement which implicated respondent in the burglary. This statement was introduced by the State for the limited purpose of impeaching Blanchard who testified that it had been given after a motor vehicle inspector had told him that the respondent had reported him (Blanchard) for stealing respondent's car. Blanchard on the stand denied that the parts in this statement implicating respondent were true and said that he had told the state's attorney to change it.

Lafreniere was called by the State and testified that he had been working for and living with respondent for about six months prior to December 17. His story about what happened on that night was in substantial agreement with Blanchard's and he exonerated the respondent from any connection with the affair. Lafreniere left for Rhode Island on a night train four days after the burglary taking his share of what remained of the loot with him. He hired respondent to drive him to Orleans to take the train and Blanchard went with them. He also testified to the burning of some of the stolen goods, placing the time of the burning a little different from that given by Blanchard.

Lafreniere indorsed Blanchard's written statement implicating respondent as stating the truth and this written endorsement was also introduced by the State for the purpose of impeaching Lafreniere.

The next two witnesses were Harold Sanville and Solon Gray, the sheriff of the county. Each of them testified to conversations they had with the respondent. Without rehearsing their testimony it is sufficient to say that none had any tendency to connect the respondent with the burglary or larceny.

The last witness called by the State was one Bourassa who was being held in the jail awaiting deportation charges by the government at the same time Blanchard, Lafreniere and the respondent were there and who testified to certain conversations carried on in French that he overheard between these three. The State claims that these conversations afforded sufficient evidence to go to the jury on the question of respondent's guilt in that they disclosed: (a), the respondent suggested to Blanchard that he (Blanchard) fabricate evidence about pushing the truck out of respondent's yard so as to clear the respondent, (b), a statement of respondent in regard to concealing a suit case indicated his participation in the burglary, (c), the respondent threatened a witness, (d), he offered a reward to Blanchard and Lafreniere if they would take all the blame, (e), respondent contemplated escape from jail.

Some difficulty is encountered in ascertaining just what Bourassa heard in regard to the conversations relating to the pushing of the truck and especially as to who said what and to whom, due to his apparent difficulty in expressing himself in English. The following is the substance of these conversations as nearly as can be determined: Blanchard told Boudreau that it wasn't Blanchard's fault if Boudreau was in jail. That Blanchard said the officer told him lies and that he (Blanchard) and Lafreniere framed up Boudreau by telling that he was with Blanchard in the commission of the crime. That Blanchard told Boudreau that the officer had lied to Blanchard and that was why he (Blanchard) had pulled Boudreau into it. Blanchard told Boudreau at first that Boudreau was not in the mixup, that he (Blanchard) took the truck and pushed it down to the sand pit and started the truck. The witness was then interrupted by the state's attorney who asked him to tell what he heard Boudreau say to Blanchard and Lafreniere about them saying that they pushed the truck so that Boudreau wouldn't hear it. The witness then continued as follows: Boudreau said to the boys that he didn't say anything, and to tell that they took the truck and pushed it to the sand pit and started it so that he (Boudreau) would not be in mixup, that he had a family and he didn't want anything to do with it, that if the boys were caught it wasn't his fault, to say they pushed the truck so as not to wake him up. Blanchard was the first to mention anything about pushing the truck. Blanchard told Boudreau that he (Blanchard) was going to tell that they (Blanchard and Lafreniere) pushed the truck to the sand pit so that Boudreau wouldn't be mixed up. Boudreau then told Blanchard to say that. Blanchard said that Boudreau was mad at him because he (Blanchard) got Boudreau into the mixup. Boudreau said about the night "they make that break in Brock's store to not mention it—that he wasn't there—that they took the truck themselves to the back of the place". Boudreau in his talk about pushing the truck did not say anything about pushing it to the gravel pit. As the witness understood it, Blanchard told Boudreau that he (Blanchard) was going to say that to clear Boudreau from the case and Boudreau said in response that "is all right".

In cross-examination this witness again testified that Blanchard was the first one to speak about pushing the truck and that he (Blanchard) said "we are going to tell him that we push that truck on the sand pit so you didn't hear start it".

On re-direct examination the last question on this subject matter was put by the state's attorney which with the answer follows :

"Q. Just before Blanchard made this remark about they were going to say they pushed the truck down to the sand pit to get it started, what if anything did he say about being sorry that he had got Boudreau in trouble? A. He says to Boudreau, he says 'I am sorry' he says 'that you are in the mix-up because' he says 'you was good to us'."

The testimony relating to the conversation regarding the suit case was as follows:

"Q. Go ahead. A. And he ask him where the suit case was that he hide in his room, in Blanchard's room.

"Mr. Pierce: That isn't plain to any one.

"The Court: Who asked where the suit case was? A. Blanchard asked Boudreau.

"Q. Asked Boudreau? A. That is, who took the suit case in his room, in Blanchard's room.

"Q. All right. Go ahead. A. And he says, 'well', he says, 'I hide it good, nobody can find it'.

"Q. Who said that? A. Boudreau.

"The Court: Now can't you, as you tell this, Mr. Witness, use their names, Boudreau's, as you go along instead of saying 'he said this' and 'he said that', use the names as...