State v. Field
| Decision Date | 04 October 1921 |
| Parties | STATE v. RALPH H. FIELD |
| Court | Vermont Supreme Court |
May Term, 1921.
COMPLAINT for selling and furnishing milk diluted with water. Plea, not guilty. Trial by jury in the Burlington City Court Chittenden County, Jed P. Ladd, City Judge. Verdict and judgment of guilty. The respondent excepted. The opinion states the case.
Judgment and sentence reversed, and cause remanded for a new trial.
Martin S. Vilas for the defendant.
Ezra M. Horton, State's Attorney, for the State.
Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
The respondent stands convicted of selling and furnishing milk diluted with water in violation of G. L. 5907. The sale complained of was to Charles Soules and Lucius White, who were operating a creamery under the firm name of Soules & White, and was made November 7, 1920.
One Murray carried the respondent's milk, milk that belonged to one Bisson, and his own, to the creamery each morning. Murray was hired by the respondent to carry the latter's milk to the creamery. The respondent claims that if his milk was diluted when delivered to the creamery it was diluted by Murray after it left respondent's farm.
The State called Murray as a witness, and he was permitted to testify, subject to respondent's objection and exception that the evidence was immaterial, that all of the milk delivered by him to the creamery November 6 and 7, including his own, the respondent's and Bisson's, was sold by weight. It is now urged that this was an attempt to prove that respondent's milk was sold by weight by showing that the witness' milk was sold that way. It appeared from the undisputed evidence of Lucius White, received without objection, that the creamery bought and paid for respondent's milk by weight. This being so, the respondent's position is this: Improper evidence was admitted to establish an undisputed fact--which is harmless error. State v. Warner, 91 Vt. 391, 101 A. 149.
It appeared during the cross-examination of the same witness that he had pleaded guilty to a complaint for selling and furnishing milk diluted with water to Soules & White, November 7. He was afterwards asked if since that time he had not been to Bisson's house and urged Bisson and his wife to plead guilty to a like charge and pay their fine, which he denied. On redirect examination he was permitted to testify, subject to the respondent's exception, that the day he pleaded guilty to said charge he stopped at Bisson's house, on his way home, at the request of Sheriff Allen, and told Bisson that Allen wanted to see him. In view of the cross-examination this explanation of why he was at Bisson's house was competent.
Dr. Ravey, health officer for the city of Burlington, was called by the State, and after testifying that in "picking up milk samples" he found milk that had been diluted with water, was permitted to testify, subject to respondent's exception, that he traced that milk to Soules & White's creamery. He then testified that on the mornings of November 6 and 7 he went to their creamery and took samples of respondent's milk, which were later found to be diluted. It not appearing that the milk which the witness found when "picking up milk samples" belonged to the respondent, the evidence objected to was incompetent, but its admission was harmless; it being merely part of the narrative of how the respondent's milk came to be examined.
Sheriff Allen, called as a witness by the State, testified, in substance, subject to the respondent's objection that the evidence was immaterial, irrelevant, and incompetent, that he asked Murray, the day the latter pleaded guilty, to stop at Bisson's house, on his way home, and tell Bisson that he (Allen) had a warrant for him and ask him to come to Burlington the next day. This evidence tended to corroborate Murray on that subject, and was admissible for that purpose.
Mrs. Bisson, called as a witness by the respondent, testified that Murray came to their house after he pleaded guilty to watering his milk and told her and her husband "that the sheriff wanted us to come over that day, and that we had better come and pay, for it would cost us less money"; and that he urged her and her husband "to come in and pay his fine". On cross-examination she testified that Murray said that Sheriff Allen sent for her husband and that Murray said "it would be better for him to come, and might save him money, than it would to have the officer come for him". She was then asked if she understood from that statement that Murray came to notify her husband at the request of Sheriff Allen, and, subject to the respondent's objection that the evidence was immaterial, irrelevant, and incompetent and called for the witness' understanding, answered, "Yes". That the answer could not have prejudiced the respondent is too plain to admit of argument.
The witness had already testified to facts from which no other understanding was deducible. Therefore, reversible error is not shown. State v. Williams, 94 Vt. 423, 111 A. 701. This answer was harmless, too, because the fact that Murray went to see Bisson at Allen's request was undisputed. State v. Warner, supra.
Respondent's exception to the remark of the State's Attorney that he objected to "rotten poison" being put into the case is unavailing, in the circumstances. It is apparent from what appears in the transcript, which is part of the exceptions, that the remark excepted to was provoked by improper statements made by respondent's attorney during his examination of the respondent and one Yantz. Since this is true, the respondent cannot be heard to complain. Douglass & Varnum v. Village of Morrisville, 89 Vt. 393, 433, 95 A. 810.
The complaint contains only one count. The State's evidence tended to show that respondent's milk delivered at the creamery November 4, 6, and 7 was diluted with water. The respondent attempted to make a motion that the State elect the day on which a conviction of the crime charged would be asked, but whether he succeeded in doing so is open to grave doubt. Enough was said, however, so that the court ruled, at the close of all the evidence, as follows: "The court leaves that with the jury to determine from the evidence in the case." This was error, and the exception must be sustained. State v. Barr & Pianfetti, 78 Vt. 97, 62 A. 43.
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Ruminations
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