State v. Eusebio Albano

• Decision Date: 02 October 1917
• Parties: STATE v. EUSEBIO ALBANO
• Court: Vermont Supreme Court

102 A. 333

92 Vt. 51

STATE v. EUSEBIO ALBANO

Supreme Court of Vermont

October 2, 1917

May Term, 1917.

INDICTMENT for assault with intent to kill and murder, being armed with a dangerous weapon. Plea, not guilty. Trial by jury at the September Term, 1916, Washington County, Fish J., presiding. Verdict guilty of assault with intent to kill. Respondent excepted.

Judgment that there is no error in the proceedings of the county court and that the respondent take nothing by his exceptions. Let execution be done.

J Ward Carver for respondent.

Fred E. Gleason, State's Attorney, for the State.

Present: WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

MILES

This is a prosecution charging the respondent with assaulting one Cerutti with intent to kill and murder him being armed with a dangerous weapon. On trial the respondent was found guilty and the case comes here upon exceptions to the exclusion of evidence, to the failure of the court to charge, to the overruling of the respondent's motion to set the verdict aside, and to the overruling of the respondent's motion in arrest of judgment. There was no question on the trial but that the respondent on the second day of July, 1916, fired at and wounded Cerutti, and that the shooting was done with a thirty-eight caliber revolver, which, evidence of the State tended to prove, was purchased by the respondent on the 27th day of May, 1916.

The respondent claimed that the shooting was done in self-defence and the first eleven exceptions were to the exclusion of evidence which the respondent claimed supported that defence and those exceptions may well be treated together. Respondent's counsel makes no claim that the evidence excluded, standing alone, would be admissible, but he claims that the excluded testimony would shed light upon the character of the self-defence and hence would be admissible in connection with that defence. The position of the respondent, therefore, depends upon his claim of self-defence. The right of self-defence is founded in the first law of nature and as applied to human affairs, it presupposes that the party interposing the defence has been assaulted. 2 R. C. L. p. 548, par. 27 et seq. "The law abhors the use of force, either for attack or defence, and never permits its use unnecessarily," and if the party assaulted has other means of avoiding the assault that are available, and that appear to him at the time as sufficient, and are in fact available, then he cannot use force in his self-defence. Howland v. Day & Dean, 56 Vt. 318. To make the testimony excluded material, it was necessary that there should have been evidence in the case tending to show that the respondent was assaulted or threatened with imminent and serious bodily injury and that he reasonably apprehended, in the circumstances of the case, that he needed to use the means which he did use in his defence. McQuiggan v. Ladd et al., 79 Vt. 90, 64 A. 503, 14 L.R.A. (N.S.) 689. A careful examination of the transcript discloses no evidence of such a character, but on the contrary, the uncontradicted testimony shows that respondent was not assaulted before the shooting but deliberately and without provocation, so far as anything appeared in the evidence, fired at Cerutti as soon as he came into his presence. Respondent's counsel claims that a mark upon the wall and the course the bullet took in passing through a portion of Cerutti's arm indicates that the shooting was done in self-defence. Counsel did not point out to us how this fact had a tendency to show that the respondent was assaulted, much less that it was done in such a manner as to justify him in reasonably apprehending that it was necessary to shoot Cerutti, and we think that fact is too shadowy to base upon it a claim of self-defense. We think that there was no error in the exclusion of that testimony.

The respondent's counsel has considered exceptions 12 and 13 together as raising only one question and we consider it in the same manner. Exception 12 was to the exclusion of a question asked Jerome Valli which was as follows: "Q. And whether or not, Mr. Valli, he is a steady worker?" The personal pronoun "he" referred to the respondent. The respondent's counsel, in connection with this question, said that he offered to show that respondent was a good steady workman, always at work, and that he had the books in court for the purpose of showing that fact and that he offered this testimony for the purpose of contradicting the testimony of the State that he was a drinking man. The State had introduced testimony tending to show, at the time of the shooting, the respondent was under the influence of intoxicating liquor to some extent, and in connection with that testimony, gave evidence tending to show that previously he had been in the habit of occasionally drinking...