State v. Charles Bissell

• Decision Date: 04 January 1934
• Citation: 170 A. 102,106 Vt. 80
• Parties: STATE v. CHARLES BISSELL
• Court: Vermont Supreme Court

170 A. 102

106 Vt. 80

STATE v. CHARLES BISSELL

Supreme Court of Vermont

January 4, 1934

November Term, 1933.

Criminal Law---Demurrer---Insufficiency of Respondent's Plea of Res Judicata---Essentials of Plea of Former Jeopardy---Perjury---Estoppel by Judgment---Acquittal of One Charged with Crime No Bar To Prosecution for Perjury Committed at Former Trial---Pleading---Limitation of Rule That Demurrer Opens Whole Record and Attaches To First Substantial Defect in Pleadings---Demurrer To Pleading as to which Issue Has Been Taken Unallowable---Sufficiency of Count for Perjury---Essentials of Information for Subornation of Perjury---Sufficiency of Count for Subornation of Perjury as to Alleging Knowledge That Witness Knew He Was To Testify Falsely---Witnesses---Credibility of Accomplices---Jury Question---Sufficiency of Corroborating Evidence To Support Charges of Perjury and Subornation of Perjury---Nolle Prosequi---Conditions under Which State's Attorney May Enter Nolle Prosequi---Entry of Nolle Prosequi before Verdict as Not Barring Another Indictment for Same Offense---Trial---No Error in Admission of Proper Testimony Because of Subsequent Withdrawal of Issue on Which Admissible---Cross-examination---Harmless Error---Inadmissibility of Evidence as to Details of Ill Will of Witness---Conclusion of Witness---Use of Word "frame-up" in Question Unobjectionable under Circumstances---Evidence Material by Reason of Defense to Charge of Perjury and Subornation of Perjury---Right of State in Prosecution for Perjury and Subornation of Perjury To Show, by Record Testimony of Witness at Former Trial Evidence Claimed To Be False---Showing Materiality of Claimed False Testimony by Record of Other Testimony in Cause---Admissibility of Transcript of Respondent's Accomplice at Former Trial To Show False Testimony Given on Material Issue---Jury Question---Admissibility in Perjury Prosecution of Evidence Tending To Show Accomplice Had Proceeds of Worthless Check Claimed by State To Have Been Divided between Respondent and Others, Which Respondent Denied Receiving---Record as Best Evidence of Charge for Which Person Prosecuted---Errors Not Claimed in Lower Court Unavailable---Exceptions Not Briefed---Trial to Which Respondent Entitled---Effect of Administering Oath as Witness to Assistant Judge Sitting at Trial as to Fair and Impartial Trial---Burden of Showing Prejudicial Error---Witnesses---Competency of Officer Having Charge of Jury as Witness---Officer Having Charge of Jury as Witness for State as Affecting Fair and Impartial Trial---Fact That Officer Having Charge of Jury Testified for State as Insufficient Grounds for Mistrial.

1. Demurrer to respondent's plea of res judicata, stating that matters set forth in plea are insufficient to entitle him to judgment prayed and denying adjudication as alleged, held merely to raise question of legal sufficiency of plea, and not to be "speaking" demurrer.

2. Demurrer to pleas of respondent admits facts which are well pleaded, but not conclusions of law therein.

3. In prosecution for perjury and subornation of perjury alleged to have been committed at former trial, respondent's plea of res judicata, by acquittal of crime then charged, held insufficient to meet test of former jeopardy, since in former case issue was guilt or innocence of respondent of particular crime charged, and issue in present prosecution is truthfulness of testimony at first trial.

4. Plea of former jeopardy must make it appear that offenses charged in both cases are same in law and fact.

5. Doctrine that truthfulness of testimony in former trial of respondent was necessarily determined by jury therein, and that judgment of acquittal in such prosecution, even though issues are different, is res judicata as to its truthfulness does not apply to perjury cases.

6. Estoppel by judgment is not to be extended to shield crime or grant immunity to criminals.

7. Acquittal of one charged with crime is no bar to prosecution for perjury committed at former trial.

8. Rule that demurrer opens whole record and attaches to first substantial defect in pleadings applies only to pleadings in particular case before court, hence, in prosecution for perjury where demurrer was made to respondent's plea of res judicata, such demurrer does not extend to claimed defects in information filed in former prosecution on which plea is based.

9. Respondent cannot demur to pleading to which he has previously taken issue.

10. Count of information for perjury which followed statutory form, held sufficient.

11. In information for subornation of perjury, charge must show not merely that suborner caused false oath to be taken, but that such oath was taken wilfully, corruptly, and knowingly by person named.

12. Count of information for subornation of perjury, held sufficiently to allege respondent's knowledge that witness knew that he was to testify falsely.

13. Credibility of testimony of accomplices is for jury, to be considered under proper instructions.

14. In prosecution for perjury and subornation of perjury overruling of respondent's motion for directed verdict on ground that there was no sufficient corroborating evidence to support charges, held without error, in view of evidence and instructions by court.

15. In such prosecution, trial court did not err in granting motion of State's attorney to withdraw from jury's consideration certain questions and answers in both counts of information therein alleged to be false, and in refusing to grant respondent's motion that verdict of not guilty be directed as to every question and answer included in State's motion to withdraw.

16. State's attorney may, after trial commences, enter nolle prosequi by permission of court on one or more counts of information.

17. Nolle prosequi entered at any stage of trial before verdict by order of court is no bar to another indictment for same offense.

18. Trial court cannot be put in error for admission of testimony admissible on allegations before court when testimony was received, by subsequent withdrawal of allegations as to which it was admissible.

19. Exclusion of evidence on cross-examination of State's witness as to whether he had attempted to reverse charges for telephone call to respondent and that latter had refused to accept call, held without error, though it had tendency to show ill-will or unfriendly feeling of witness to respondent.

20. Ill-will or unfriendly feeling of witness may be shown by general inquiry whether witness is friendly or otherwise, but question is so collateral to issue that details will not be permitted to be shown.

21. Question asked State's witness on direct examination as to whether there was any "frame-up" at certain place implicating respondent, held not objectionable as calling for conclusion of witness, but to call for statement of fact, in view of understanding as to its meaning and reference at trial and its familiar and generally recognized meaning.

22. In prosecution for subornation of perjury, where alleged false testimony of witness at first trial was to effect that "frame-up" by respondent's accomplices implicating respondent was arranged at certain place, it was proper for State to show that they went to such place.

23. In such prosecution, accomplice having testified to falsity of his testimony in former trial, it was proper for State to show by record what his testimony was in cause in which it was claimed he testified falsely.

24. As general rule, materiality of alleged false testimony may be shown by record of other testimony given in cause.

25. Transcript of testimony of respondent's accomplice given at former trial, offered and received solely for purpose of showing that alleged false testimony was given on material issue, held admissible in prosecution for subornation of perjury, over general objection that evidence was incompetent, irrelevant, and immaterial, where some of evidence was material and relevant to issue on which offered.

26. In prosecution for subornation of perjury, in which witness admitted that much of his testimony at former trial was false, question whether his former testimony should be rejected, held for jury and not for court.

27. In prosecution for perjury by respondent in having denied receipt of proceeds of worthless checks, or that any of it was divided in his presence, testimony of his accomplice that she had cashed such a check and what was received therefor, held admissible for purpose of showing that such accomplice had money which State claimed was divided later in respondent's presence between him and others.

28. In prosecution for subornation of perjury, exclusion of question asked respondent as to charge against his accomplice when bailed by respondent, and offer to show respondent's knowledge of fact, held proper, record being best evidence.

29. Claimed error in charge of trial court, not made below, will not be considered in Supreme Court.

30. Exception not briefed is waived.

31. Respondent is entitled to fair trial as free as may be from suspicion of partiality or undue influence.

32. Merely administering witness' oath to one of assistant judges sitting at trial does not disqualify him nor deprive respondent therein of fair and impartial trial.

33. Prejudice is not presumed, and burden is on excepting party to show it.

34. Mere fact that officer has charge of jury does not render him incompetent as witness

35. Mere fact that officer having charge of jury was witness for State does not deprive respondent of fair and impartial trial.

36. Respondent's motion for mistrial on ground that sheriff having charge of jury for short time during trial was later sworn and testified as witness for State, held properly denied.

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