State v. Charles Willett

• Decision Date: 03 November 1905
• Parties: STATE v. CHARLES WILLETT
• Court: Vermont Supreme Court

62 A. 48

78 Vt. 157

STATE v. CHARLES WILLETT

Supreme Court of Vermont

November 3, 1905

October Term, 1904.

INFORMATION for statutory rape. Plea, not guilty. Trial by jury at the September Term, 1903, Chittenden County, Tyler J., presiding. Verdict, guilty; judgment thereon. The respondent excepted.

Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions.

H S. Peck and J. J. Enright for the respondent.

Present: ROWELL, C. J., MUNSON, START, WATSON, HASELTON, and POWERS, JJ.

OPINION

MUNSON

The information charged an offence on the ninth day of September, and the State's Attorney said in his opening statement that he expected to prove an offence in August. The respondent thereupon moved that the information be quashed, on the ground that it alleged an impossible date. It is certain that no statement of a time other than the one alleged could make the one alleged an impossible date under the rules of pleading. The motion was properly overruled.

The court permitted the State to introduce evidence of intercourse had on different days, as the basis of an election, and refused to require the State to select the occasion on which it would rely until the close of its case; to all of which exception was taken. The admission of evidence covering several occasions was not error, if upon an election being made the evidence relating to other occasions bore upon the issue as finally submitted. In a prosecution for adultery, evidence of other acts of adultery occurring both before and after the one charged, is admissible. State v. Bridgman, 49 Vt. 202. The same rule must be applicable in a prosecution for statutory rape. So the evidence of the several acts was properly in the case. The matter of election is ordinarily within the discretion of the court, and it is clear that no exception will lie to the action of the court if an election is compelled before the respondent is called upon for his defence. 1 Bish. New Cr. Proc. § 461, 5; State v. Smith, 22 Vt. 74.

In undertaking to prove a complaint the State's Attorney asked in regard to the nature of it, cautioning the witness not to name the person complained of; and the witness replied, "She said he had insulted her." The witness was then asked, "What did she say had been done to her?" and replied, "She did not say, only that is the way she said it. She said he had insulted her." The answers were objected to on the ground that in effect they named the respondent, and exceptions were noted. We do not think the case should be reversed because of these answers. The State was without fault. The question was proper, and the witness carefully cautioned. The witness evidently tried to answer properly. The frame of the answer was such that a successful interruption was impossible. The answer itself did not same the respondent. It could have that effect only because the respondent was on trial and had been testified about. The propriety of allowing an exception in these circumstances has been questioned. The court would at once have instructed the jury as to the proper use of the answer upon a suggestion from respondent's counsel. This removal of the matter from the minds of the jury as far as it can be done, is all that the respondent is ordinarily entitled to in such instances. The views of the Court upon this subject may be gathered from Houston v. Russell, 52 Vt. 110, 117; Frary v. Gusha, 59 Vt. 257, 9 A. 549; Lawrence v. Graves' Estate, 60 Vt. 657, 15 A. 342.

The respondent moved for a verdict on the ground of a variance between allegation and proof as to the time when the offence was committed. The motion was properly overruled; for unless descriptive of the offence the time need not be proved as laid. 1 Bish. New Cr. Proc. 386.

The prosecutrix was at the respondent's house during the four weeks in August. It appears from a short extract of her testimony, incorporated into the exceptions for another purpose, that she testified that the first occasion was after she had been there about two weeks. The exceptions show that the State's evidence tended to establish five...