State v. Burpee

• Decision Date: 19 February 1892
• Parties: STATE v. FRANK I. BURPEE
• Court: Vermont Supreme Court

25 A. 964

65 Vt. 1

STATE v. FRANK I. BURPEE

Supreme Court of Vermont

February 19, 1892

GENERAL TERM, 1892

Indictment for larceny of cattle. Trial by jury at the December term, 1891, TAFT, J. presiding. Verdict, guilty. Exceptions by the respondent. The case appears in the opinion.

For the error indicated the exceptions are sustained judgment reversed, verdict set aside, and cause remanded for trial.

Gilbert A. Davis and Frank H. Clark, for the respondent.

Before ROWELL, TYLER, START, AND THOMPSON, JJ.

OPINION

THOMPSON

The witness Potter was an important witness for the prosecution. He had slaughtered the cattle named in the indictment. He testified that he bought them of respondent. The respondent claimed this testimony to be untrue, and as showing a motive on the part of Potter to falsify in this respect, offered to prove that Potter had been arrested on the charge of stealing the cattle in question. The evidence offered was excluded. In this there was error. If Potter had a motive to testify falsely, it rendered the proof of the claim that he had done so, more probable. If he was under suspicion of having committed the identical crime in question, and had been arrested for it, he was testifying as it were with a rope about his neck, and might naturally desire and seek to screen himself in the account he gave as to how the cattle came into his possession. It has been repeatedly held by this court, that "All facts and circumstances upon which any reasonable inference or presumption can be founded as to the truth or falsity of the issue or of a disputed fact, are admissible in evidence." Richardson v. Turnpike Co., 6 Vt. 496; Randall v. Preston, 52 Vt. 198; Beckley v. Jarvis, 55 Vt. 348; Aiken v. Kennison, 58 Vt. 665, 5 A. 757; Tufts v. Town of Chester, 62 Vt. 353, 19 A. 988; Armstrong v. Noble, 55 Vt. 428; Tenney v. Harvey, 63 Vt. 520, 22 A. 659.

II. The evidence of Warren Bailey tended to prove that his general knowledge of respondent's witness, Clark Spaulding, was such as to include a knowledge of his reputation for truth and veracity, and it was not error to allow Bailey to state what Spaulding's reputation was in that respect.

III. The State's Attorney put a question to respondent's witness, Mary Poor, which the court ruled she might answer, to which ruling the respondent excepted. Upon the refusal of the witness to answer the question, it was not insisted upon and was not answered. It is not necessary to decide whether the question was proper or not. Were it assumed to be improper, the defendant's exception cannot avail him. A judgment will not be reversed because an improper question is asked, if no inadmissible evidence is obtained in answer to it, Randolph v. Woodstock, 35 Vt. 291; Carpenter v. Corinth, 58 Vt. 214, 2 A. 170; Smith v. Insurance Co., 60 Vt. 682, 15 A. 353.

IV. The respondent requested the court below to charge the jury that "in a criminal case the jury are judges of the law applicable to the case upon the testimony given in court, and that the jury have a right to adopt their own theory of the law, instead of the law as laid down by the court." The refusal of the court to charge as requested, raises the question whether in criminal cases, the jurors are paramount judges of the law as well as of the fact.

In 1829, this question was incidentally before this court in State v. Wilkinson, 2 Vt. 480, but no authorities were cited in the opinion of the court on this question, and the charge of the court below was so construed as not to raise it for decision.

In 1849, in the case of State v. Croteau, 23 Vt. 14, the question was raised for decision, and a majority of the court held that in all criminal cases, the jury are, by the common law, the paramount judges both of the law and the facts. The court consisted of Royce, Ch. J., and Bennett, Kellogg and Hall. JJ. Bennett, J., dissented from the holding of the majority, in an opinion both able and vigorous.

In 1850, the case of State v. Woodward, 23 Vt. 92, was decided. Royce, Ch. J., and Redfield and Kellogg, JJ., constituted the court. In this case, the respondent was indicted for a nuisance by inclosing a portion of a public common in the town of Westford. The respondent contended that it was for the jury to say whether the act complained of constituted a nuisance. On this point the court said: "It is argued that the question, whether the act charged upon the respondent was a nuisance, should have been submitted to the jury, and in support of it several cases are cited, which are claimed as sustaining the proposition. Whether, in cases of this kind, the question should be put to the jury must depend upon the character of the nuisance charged in the indictment. If the act complained of does not divest the property, or any part of it, from the use of the public, or in any manner impair the public use and enjoyment of it, but the act was done for the purpose of making the use more beneficial to the public, there would seem to be a manifest propriety in submitting the same to the jury. And the cases which we have examined, where the question has been submitted to the jury, seem to have been of this character. But where the act complained of is the taking of property dedicated to the use of the public, and appropriating it to private use, thereby wholly excluding the public from the enjoyment of it, we are not aware of any rule of law, that requires such an act to be submitted to the jury, to say whether it is a nuisance. Such is the character of the act with which the respondent is charged; and in the judgment of the court, it is ipso facto, in law, a nuisance, for the commission of which there can be no justification." It is difficult to see how this holding can be reconciled with the doctrine adopted without reservation or exception in State v. Croteau, supra.

In State v. Paddock, 24 Vt. 312, heard in 1852, and which was a prosecution for selling spirituous liquors, the court below " directed the jury to return a verdict of guilty, for each act of selling," to which the respondent excepted. In passing upon this exception this court say: "It is argued that the jury, in cases of this character, are judges of the law and fact, and that under this charge that right was taken from the jury. In criminal cases it is the duty of the court to aid and instruct the jury, and decide upon the law arising in the case. But the jury are the ultimate judges of both the law and the fact, and this right cannot be taken from them. * * * * If it appeared that the court were requested to charge or inform the jury that they were the judges of the law and the fact, and the court neglected or refused so to do, and directed them as to the verdict they were to bring in, the exceptions would have been well taken. But as the matter now rests, that direction in the choice of the court, must be considered as an expression simply of his opinion of the law in the case, and which it was his duty to give, and as informing the jury that it was their duty to return such a verdict, without in any way controverting their ultimate right of exercising their own judgment in the case. For the want of positive error, affirmatively appearing in the exceptions, this objection is overruled." If the jury had the legal right to ignore the instructions of the court, and substitute their own judgment as to the law for that of the court, it could not have been their legal duty to return such a verdict as the court directed. Hence, the court in this case is left in the position of holding that it is not error for the court below to charge the jury that it is their duty to do a thing, although it is not their legal duty to to do it. Again, it is not easy to reconcile the reasoning in this case with the well settled rule in this State, that "it is the duty of the court to charge fully upon all the points of law in the case," without being requested to do so. State v. Hopkins, 56 Vt. 250.

In State v. McDonnell, 32 Vt. 491, decided in January, A. D. 1860, and which was an indictment for murder, the court below instructed the jury that they were the judges of the law and the facts under the law of this State, but that it was "a most nonsenical and absurd theory," and that the jury "would be amply and fully justified in relying upon the court for the law that should govern the case, and holding them accountable for that." This was urged as error, in this court, but the objection was not sustained. In passing upon this exception the court said: "We see no objection, where the interference of a jury is directly invoked in a criminal case, to the judge stating to the jury, in his own way, that this rule is not intended for ordinary criminal cases; that it is a matter of favor to the defendant, and should not be acted upon by the jury, except after the most thorough conviction of its necessity and propriety; that any departure by the jury from the law laid down by the court, must be taken solely upon their own responsibility; and that the safer, and better, and fairer way, in ordinary criminal cases, is to take the law from the court, and they are always justified in doing so. This is substantially what was done by the court below, and we see no just ground of exception to the mode in which it was done."

In State v. Haynes, 36 Vt. 667, while the rule laid down in State v. Croteau, supra, was recognized, it was held that records of former convictions, to enhance the penalty, need not be offered to the jury, as the law then stood, but might be introduced after verdict to affect the sentence only. Poland, Ch. J., in delivering the opinion of the court said: "To say that the defendants must have an opportunity to have this question of law submitted to the jury, so as to have the benefit...