State v. Brown

• Decision Date: 06 September 1960
• Docket Number: No. 1150,1150
• Citation: 122 Vt. 59,163 A.2d 845
• Parties: STATE of Vermont v. Frank BROWN.
• Court: Vermont Supreme Court

Page 845

163 A.2d 845

122 Vt. 59

STATE of Vermont v. Frank BROWN.

No. 1150.

Supreme Court of Vermont.

Sept. 6, 1960.

Thomas M. Debevoise, II, Atty. Gen., for plaintiff.

John S. Burgess, Brattleboro, Black & Plante, White River Jct., for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SMITH, Justice.

This is a petition for new trial. The petitioner was convicted at the Septmeber Term, 1959 of Windham County Court of arson causing death, in violation of 13 V.S.A. § 501. The fire, which was the cause of the indictment, was in a drug store in Brattleboro, Vermont, which at the time of the fire was managed and controlled by the petitioner.

After verdict the petitioner moved for a new trial, and for judgment in his favor, notwithstanding the verdict. The grounds stated were that the verdict was contrary to the weight of the evidence, that it was not supported by substantial evidence, and by claimed errors on the part of the trial court in the admission and rejection of evidence. Error was also claimed on the part of the lower court in the charge given to the jury, and to the denial of the petitioner's motion for acquittal.

The petition for a new trial directed to the trial court also contained allegations that a fair trial was not had by the petitioner in Windham County because of adverse newspaper publicity prior to the trial of the case, as well as prejudice against the petitioner because of his racial and religious background. He also alleged surprise because of the introduction by the State of expert testimony on technical evidence relative to the incendiary nature of the fire.

The motion was overruled, under exception, followed by judgment and sentence on Dec. 3, 1959, with stay of sentence and execution for thirty days pursuant to the provisions of 12 V.S.A. § 2388, pending an appeal. The petitioner attempted to file a notice of appeal with the clerk of the Windham County Court, as provided in 12 V.S.A. § 2382 which was dismissed by this Court at the May Term, 1960 as not having been filed within the time allowed by law. See State of Vermont v. Brown, 121 Vt. ----, 160 A.2d 879.

The petition for a new trial to this Court is based upon three separate grounds by the petitioner. The result sought is a new trial in some county of this State other than Windham County.

The first ground set forth by the petitioner is that he was prejudiced by a trial before a Windham County jury and will continue to be so prejudiced, and that he received an unfair and partial trial as a result.

An examination of the record of the case filed with us discloses that the claim of prejudice was first advanced by this petitioner in a motion for a change of venue made by him to the Windham County Court before trial. The motion for a change of venue was denied by that court as a matter of discretion.

The record and transcript also discloses that prejudice was one of the grounds set forth in petitioner's motion, after verdict, for a new trial made to the Windham County Court. Much of the evidence offered to this Court on the ground of prejudice such as newspaper articles before trial, the racial origin of the petitioner, and the absence of persons of the same religious faith as the petitioner from the jury panel, is identical with that considered by the trial court in its denial of the motion for a new trial before it. It has long been the law in this jurisdiction that a new trial will not be granted by this Court where it has been denied by the trial court on a motion made on the same grounds. Stilphen v. Read, 64 Vt. 400, 401, 23 A. 725.

However, in his petition to this Court the petitioner has also set forth that in a civil case brought by the Schoffer Drug Co. to collect fire insurance issued on the building, and tried in the United States District Court for Vermont at Burlington, a jury found that the fire, which was the cause of both the criminal and the civil proceedings, was not incendiary in origin. Because of this new evidence presented to us, and which was not presented to the trial court in petitioner's motion for a new trial before that tribunal, and having in mind the lack of limitation upon ground for which this Court may grant new trials under the statutes, we have considered all the grounds relied upon by this petition relative to prejudice.

The transcript of the case below discloses that each prospective juror was ably and exhaustively examined for indications of prejudice by the two experienced counsel for the petitioner, and that they were individually examined upon the effect of the same subject matter as is presented here, including racial or religious prejudice. The record shows that the respondent was content with the jury as drawn.

The petitioner contends that the jury's prejudice is indicated by the shortness of time taken by them in arriving at a verdict. The transcript indicates that the jury took slightly over four hours in their deliberations before reaching a verdict. That a passage of time of this length is 'very short' as petitioner contends is, in our opinion, a debatable conclusion. But, whatever the conclusion might be, in the absence of circumstances evidencing passion or prejudice, which we are unable to find here, shortness of time alone taken by a jury in reaching a verdict may not be used as the basis for a new trial. 66 C.J.S. New Trial § 58, p. 186.

A jury in any case, civil or criminal, are the judges of the facts. Each jury in the case before it, under proper guidance and direction of the court, makes the ultimate decision on the issues of fact presented to it. While precedent often governs, and sometimes results in the overruling of the decisions of law by a court, one jury does not, and cannot, set a precedent for the judging of issues of facts by another jury. And this must be so even if almost identical issues of fact are considered by two different juries, because the decision of each jury on the facts before it is supreme and unappealable. The fact that one jury reaches a different conclusion on an issue of fact than another jury reaches on a similar issue, in itself, cannot be proof of prejudice on either one or the other of these tribunals of fact. Each was the final arbiter on the issues of fact before it.

It would also appear from the records before us that all of the same witnesses did not appear before the respective juries in both the criminal and civil cases, nor is there anything before us to indicate that the issues were the same in both cases. Indeed, the fact that one case was a criminal prosecution, while the other was a civil proceeding for money damages, would lead to the inescapable conclusion that the issues, in part at least, which confronted the two juries were different.

The second ground presented in the petition is that there now exists newly discovered evidence of a technical nature sufficient to change the result of the trial, and which did lead to a different result in the subsequent trial of the civil case in the Federal Court.

The primary questions presented to this Court for a new trial on the ground of newly discovered evidence are, first, that such evidence is new, in that the petitioner did not know about it, and that such lack of knowledge was not by reason of lack of diligence on the part of the petitioner, and, second, that such new evidence is of such character as to give reasonable assurance that it will work a different result upon a retrial. Kaeser v. Town of Starksboro, 116 Vt. 389, 392, 77 A.2d 831; State v. Baker, 115 Vt. 94, 112, 53 A.2d 53.

In considering the question of whether such newly discovered evidence is such as to give reasonable assurance that it will work a different result upon a retrial we quote the words of this Court in Doherty v. State of Vermont, 73 Vt. 380, 389, 50 A. 1113, 1116:

'In passing upon this question we must, to some extent, at least, place ourselves in the position of jurors; for it is for us to determine whether, upon all the testimony in the case, a jury upon another trial would arrive at another result from that expressed by the verdict upon the former trial.'

The new evidence offered by the petitioner consists of the testimony of two expert witnesses who appeared in the civil trial in the United States District Court. It is the claim of the petitioner that such newly discovered evidence would contradict the testimony of Dr. Harrison, an expert witness produced by the State in the trial below, on the incendiary nature of the fire.

The transcript of the trial below discloses that the State produced two expert witnesses who testified as to the cause and origin of the fire, while the petitioner, on his part produced four expert witnesses who testified on various aspects of the same subject matter. The petitioner now seeks to offer additional expert and opinion evidence, claimed to be newly discovered, on the fire's cause and origin.

One of the two witnesses, whose testimony is now offered by the petitioner, is Professor Donald Carr, an instructor in an educational institution in Windham County, Vermont. His testimony is confined to the result of various experiments made by him as to the effect of heat and fire on so-called accelerants in various types of containers. The petitioner claims that the effect of such evidence would be to contradict the testimoney of Dr. Harrison, given in cross-examination, as to similar experiments performed by him.

It is at least doubtful, in our opinion, that diligence could not have produced Professor Carr as a witness for the petitioner in the trial below. He was a resident of the very county in which the case was tried in which both the respondent and one of his counsel also lived. But, waiving the issue of diligence, by the very offer of the petitioner it is evident that Professor Carr's testimony goes only to the impeachment of that of Dr. Harrison's testimony. A new trial will not be granted for newly discovered...