State v. Brisson

• Decision Date: 04 October 1955
• Docket Number: No. 546,546
• Citation: 117 A.2d 255,119 Vt. 48
• Parties: STATE of Vermont v. Rhee A. BRISSON.
• Court: Vermont Supreme Court

Page 255

117 A.2d 255

119 Vt. 48

STATE of Vermont v. Rhee A. BRISSON.

No. 546.

Supreme Court of Vermont.

Oct. 4, 1955.

William B. Goldsbury, State's Attorney, St. Albans, for plaintiff.

Louis Lisman, Burlington, for defendant.

Before JEFFORDS, C. J., CLEARY, CHASE and HULBURD, JJ., and HOLDEN, Superior Court Judge.

HOLDEN, Superior Court Judge.

The respondent Rheo A. Brisson was found guilty of operating a motor vehicle while under the influence of intoxicating liquor upon trial by jury in the Franklin County Municipal Court. By its verdict the jury found the respondent to have violated the provisions of V.S. 47, § 10287, 'A person shall not operate or attempt to operate a motor vehicle while under the influence of intoxicating liquor * * *.'

The cause is before this Court on exceptions taken by the respondent to the instructions to the jury by the trial court on submission of the case for decision.

Little or no conflict developed in the facts presented at the trial. Rheo A. Brisson was arrested in the early evening of June 1, 1954, on South Main Street in the City of St. Albans. His arrest came about after he was observed by a city police officer operating his motor vehicle astride the center line of the highway upon making a wide right turn into Main Street from an intersecting highway. The arresting officer observed nothing unusual about his outward appearance. He called upon Brisson to walk a straight line. The respondent staggered badly and his breath smelled of beer. Thereupon the officer informed Brisson he was under arrest. Brisson then became nervous, excited, and boisterous. His speech was quick but normal. He refused to enter the police car voluntarily and force was required to complete the arrest. At a later examination by a physician he was subjected to a series of coordination tests. This examination disclosed his eyes reacted normally. Coordination was defective. His principal difficulty was in standing, walking and turning wherein he swayed and stumbled slightly. He experienced some difficulty in picking up a coin from the floor. The respondent admitted the consumption of two drinks of gin and a half glass of beer but asserted that these drinks in no way affected his usual physical conduct or reactions. The respondent conceded that he staggered and swayed on the night of June 1, 1954. He claimed, however, that this manner of walking was his customary gait when he walked more than a few steps, that it was only when he exerted intense concentration that he could walk a short distance without wavering.

During the examination of the State's medical witness by respondent's counsel, it was developed that the respondent had manifested symptoms of the disease of multiple sclerosis commencing in 1944. This witness testified that multiple sclerosis is a disease indicated by symptoms of swaying, stumbling, uncertainty, and groping, and when chronic, has periods of remission and relapse usually becoming progressively worse over a period of fifteen to twenty years. The relapses develop more frequently and recovery is less complete with each recurrence. The respondent was hospitalized at the Fanny Allen Hospital in Winooski in October, 1951. His condition was then diagnosed as 'questionable multiple sclerosis.' One of the factors leading to this diagnosis was the respondent patient's staggering gait. The diagnosis made at the hospital in 1951 was not made known to the respondent. It appears that in the ordinary course, the respondent's physical condition from disease, producing a staggering gait and faulty coordination, would become progressively aggravated from 1951 to the date of the alleged offense on June 1, 1954, and that on the latter date Brisson suffered from the same physical condition with which he was afflicted when the diagnosis of questionable multiple sclerosis was first made. The respondent testified that while he was aware he suffered from a physical infirmity and was currently receiving medical treatment for this affliction, he did not know the medical diagnosis of his condition until it appeared at the trial. The medical testimony in the case established in the proof that some of the generally recognized symptoms of the disease, multiple sclerosis, are consistent with some of the indications attendant upon human reaction to intoxication from alcohol. No other significant facts are established in the proof.

Of the several exceptions to the instructions of the court to the jury asserted by the respondent, two have been briefed. Those exceptions taken but not briefed are not for consideration on this appeal. State v. Noyes, 111 Vt. 178, 181, 13 A.2d 187; Little v. Loud, 112 Vt. 299, 301, 23 A.2d 628.

In his instructions to the jury the trial court completely and adequately explained the burden of proof, pointing out with proper definition that the respondent could not be found guilty unless the triers of the fact were satisfied of his guilt beyond a reasonable doubt. Reasonable doubt was explained with exactness and clarity in accordance with principles long established and accepted by the courts of this state. The rule of reasonable doubt was reiterated at the conclusion of the instruction.

To this aspect of the court's instructions, the respondent excepted in substance to the failure of the court to charge that if the jury found the evidence equally supported a conviction or an acquittal, then they must acquit.

In his brief of this exception the respondent relies on four of our cases. State v. Goodhart, 112 Vt. 154, 158, 22 A.2d 151; State v. Boudreau, 111 Vt. 351, 360, 16 A.2d 262; State v. Bean, 77 Vt. 384, 403, 60 A. 807; State v. Davidson, 30 Vt. 377, 385, 73 Am.Dec. 312. These cases state that the required proof in criminal cases, where the evidence relied upon is entirely circumstantial, must be such as to exclude every reasonable hypothesis except that the respondent is guilty. None of them hold that the court was required to charge the jury that if the evidence equally supported a conviction or an acquittal they must acquit. Further, by properly imposing the burden of proof and clearly stating the rule as to reasonable doubt, the trial judge afforded the accused greater safeguard than the instruction indicated by the respondent's exception. As to this exception no error is made to appear.

The respondent requested, and was allowed a further exception to the instructions of the court to the jury on submission of the cause. This exception is to the effect that the trial court failed to instruct the jury that if they found the...