State v. Dragon

• Decision Date: 14 August 1970
• Docket Number: No. 139-69,139-69
• Citation: State v. Dragon, 268 A.2d 913, 128 Vt. 568 (Vt. 1970)
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Robert Eugene DRAGON, Jr.

Page 913

268 A.2d 913

128 Vt. 568

STATE of Vermont v.Robert Eugene DRAGON, Jr.

No. 139-69.

Supreme Court of Vermont.

Aug. 14, 1970.

James M. Jeffords, Atty. Gen., and William T. Keefe, Asst. Atty. Gen., for plaintiff.

Frederick J. Glover, Ludlow, for defendant.

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

SMITH, Justice.

This is an appeal from a jury verdict of guilty returned to the Vermont District Court, Chittenden Circuit Unit #2, Burlington, Vermont, in the County of Chittenden, on the 14th day of August, 1969, and from the court's ruling which denied the respondent's motion for a directed verdict both at the close of the State's evidence and again at the conclusion of the respondent's case.

The respondent's requests for a directed verdict of acquittal were that the evidence, taken most favorable to the State, disclosed that it was the respondent who was first struck in the fracas by Gagnon, that the State failed to prove beyond a reasonable doubt that the respondent did not act in self-defense.

The factual situation which existed before the encounter between Dragon and Gagnon is in little dispute.Gagnon, Barbara Barrows, Raymond Lovejoy, Robert Rheaume, together with Mr. and Mrs. James Rheaume, had been spending a good part of Sunday, September 8, 1968, at a place called the Gateway in social relaxation, a relaxation possibly aided by the admitted consumption of considerable amounts of liquid refreshment.Around midnight, the group of merrymakers all came to the James Rheaume residence for a further continuation of the festivities.

The respondent, with his brother Clifton, drove up to the Rheaume residence at some time while the party was taking place and was met by Bernard Gagnon.It was then that the encounter took place that led to this prosecution.

While the respondent did not take the stand in his own defense, the alleged victim, Bernard Gagnon, did testify as a witness for the State, as did other persons who were present at the Rheaume home at the time of the encounter.

All the direct evidence in the case, produced by the State, was that Gagnon struck the original blow that caused the fight between him and the respondent.In fact, Gagnon, the victim of the fray, so testified.As the State brought out by means of pre-trial statements given by the witnesses, including Gagnon, this testimony was directly contrary to statements which these witnesses had given to State Police officers during the investigation of the affair, as well as to pre-trial accounts of the fight given to others.

It is the contention of the State that the undisputed fact that Gagnon had in pre-trial statements declared that the respondent struck struck the first blow, that such admissions, at variance with his testimony, serve not only to impeach him, but also as evidence that the fact was as first admitted.Such is the rule when a party to a case, as in a civil action, makes an admission at variance with his testimony.Hall v. Royce, 109 Vt. 99, 108, 192 A. 193.

But it was the State of Vermont and Robert Dragon who were the parties in the instant case, and Mr. Gagnon was only a witness.A witness, not a party, may be impeached by giving in evidence statements made by such witness, at a former trial or elsewhere, which are inconsistent with his testimony, the foundation of such impeachment having first been laid by calling the witness' attention to the claimed statement and questioning him about it.Such statements are impeaching statements only, and when the witness is not a party, are not evidence to prove the fact to be as stated.Bennett v. Robertson, 107 Vt. 202, 212, 177 A. 625.

The State is not bound by the witnesses it calls in a criminal case.But it is bound by the same rules of evidence upon the testimony which it produces through its witnesses, whether they be friendly or hostile.Viewing the evidence in the light most favorable to the State such evidence is undisputed that the respondent did not strike the first blow.

In such circumstances, the respondent had the right to use sufficient force to repel the attack made upon him by Gagnon.

'The rule as to the right to use force to repel an...