State v. Bressette
| Decision Date | 06 June 1972 |
| Docket Number | No. 98-71,98-71 |
| Citation | 130 Vt. 321,292 A.2d 817 |
| Parties | STATE of Vermont v. Clayton BRESSETTE. |
| Court | Vermont Supreme Court |
James M. Jeffords, Atty. Gen., and H. Russell Morss, Jr., Asst. Atty. Gen., for the State.
Robert A. Gensburg, St. Johnsbury, for defendant.
Before SHANGRAW, C. J., BARNEY, KEYSER and DALEY, JJ., and GIBSON, Superior Judge.
The respondent was charged with the offense of breach of the public peace, 13 V.S.A. § 1021(1), by assaulting, beating and striking one Daniel Cross in Island Pond, Vermont, on August 7, 1970. Trial by jury in the District Court of Vermont, unit No. 4, Essex Circuit, resulted in a verdict of guilty, and judgment was entered upon the verdict. The respondent appeals to this Court from that judgment.
By motion for a directed verdict of acquittal, made at the close of the state's case, the respondent sought a verdict in his favor on the ground that the evidence, viewed in the light most favorable to the state, failed to disclose a breach of the public peace. As a second ground, the respondent claimed that Mr. Cross had no lawful right to stop him a second time, and that a blocking of the respondent's path of travel by the constable gave him a lawful right to act as he did.
This motion was overruled by the court and it is from this ruling that respondent seeks review here.
The respondent has briefed two issues: (1) No breach of the public peace occurred, and (2) If a breach of the public peace did occur, it was caused by the constable. His appeal was met by a motion to dismiss filed by the state, which alleged that the record is insufficient for this Court to pass upon any of the issues presented.
The issues sought to be raised by the respondent would, if properly before us, receive serious consideration, but their consideration has been foregone by not having been raised at the conclusion of all of the evidence prior to the case being submitted to the jury. It has long been the law of this state that by proceeding with the trial after the denial of a motion for a directed verdict the respondent waives any issue raised by the motion. State v. Goyet, 120 Vt. 12, 44, 132 A.2d 623 (1957); State v. Bean, 107 Vt. 513, 515, 180 A. 882 (1935).
We are confined to the record which it is the duty of the appellant to provide, and no question may be brought to a reviewing court unless the trial court had a fair opportunity to consider, evaluate and rule upon such question. State v. Morse, 127 Vt. 137, 139, 241 A.2d 328 (1968). The record, including the transcript of proceedings, fails to disclose any renewal of the motion on the grounds first raised or otherwise....
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State v. Kasper
...below has not deprived the trial court of "a fair opportunity to consider, evaluate and rule upon such question." State v. Bressette, 130 Vt. 321, 322, 292 A.2d 817, 818 (1972). Such a defect should be noticed by the trial judge sua sponte, and the doctrine of State v. Morrill, supra, requi......
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State v. Manning
...limine, in which he sought to suppress this evidence, prevents us from assessing whether such a showing was made. State v. Bressette, 130 Vt. 321, 322, 292 A.2d 817, 818 (1972). Moreover, it is our view that burglary is malum in se, see 1 Wharton's Criminal Law and Procedure § 26, at 56 (19......
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State v. West
...ruling on a motion for acquittal made at the end of the State's case, when the defendant presents evidence. See State v. Bressette, 130 Vt. 321, 322, 292 A.2d 817, 818 (1972). Nonetheless, he urges us to reject this rule. We decline to overrule Bressette, and reaffirm the waiver rule adopte......
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Vermont Built, Inc. v. Krolick
...when "the trial court had a fair opportunity to consider, evaluate and rule upon" the question raised on appeal. State v. Bressette, 130 Vt. 321, 322, 292 A.2d 817, 818 (1972). ¶ 11. It is evident from the record that contractor proposed a statutory basis for modification or vacatur of the ......