State v. Fitzgerald
| Decision Date | 03 March 1900 |
| Citation | 72 Vt. 142,47 A. 403 |
| Parties | STATE v. FITZGERALD. |
| Court | Vermont Supreme Court |
Exceptions from Bennington county court; Munson, Judge.
Morris Fitzgerald was convicted of burglary, and he brings exceptions. Reversed.
Argued before TAFT, C. J., and ROWELL, TYLER, START, THOMPSON, and WATSON, JJ.
Edward L. Bates, State's Atty. W. B. Sheldon, for respondent.
The respondent was indicted and tried for burglarizing the store of Frank Huling, and for the larceny of 17 watches therein being, of the property of Huling. Huling was a witness in behalf of the state, and testified, in substance, that some of these watches were old ones for which he had traded, and some of them were new ones purchased by him of Bogle Bros, of White River Junction, and that when he purchased them he received from Bogle Bros., bills with the numbers of the watches purchased thereon, which he afterwards compared with the numbers on the watches, and found to be correct; that after the burglary he copied the numbers of the watches from some of these bills, and gave a copy to the officer to aid him in looking after the stolen property and in identifying the same. The copied list was in court, and Huling was asked by the state whether the numbers upon that paper or list were the same that he found upon the bills which he had with the watches, to which he answered, The respondent made no objection until after the answer was given, and the question and answer were allowed to stand subject to exception. The answer was responsive to the question, and the objection and the exception were too late, and are unavailing. State v. Ward, 61 Vt. 153, 17 Atl. 483. John Nash, the officer to whom the copied list was furnished by Huling, was improved by the state as a witness, and, after testifying to the description and numbers of the watches found by him, was asked how the description and the numbers he had given compared with the list furnished him by Huling before he recovered possession of the watches. To the ruling that this might be shown, respondent excepted. But it does not appear by the record that the question was answered, and therefore whether it was proper or otherwise is immaterial, as the respondent was not prejudiced thereby. Smith v. Insurance Co., 60 Vt. 682, 15 Atl. 353. M. C. Holt, an employé of Huling, who had charge of the store for a long time before and at the time it was burglarized, was a witness in behalf of the state, and produced a bill of two of the watches in question from Bogle Bros, to Huling. This bill contained the numbers of those two watches, and was properly admitted in evidence in connection with the testimony of the witness, upon the question of identification of the watches traced into the respondent's possession shortly after the burglary, as property stolen from Huling's store at that time. The bills of some of the other new watches were found by the court to be last, and the copies thereof, testified to by Huling and used by the officer, were properly admitted as secondary evidence in connection with the testimony of the witness upon the same question. The evidence tended to show that these watches were kept in a show case in the store, and each night were taken therefrom, and put into a box under the counter to remain till morning as a hiding place, in case any one should break and enter the store in the nighttime with intent to steal, and that the respondent had been in the employ of Huling, slept over the store, and had seen the watches thus hid away on different occasions by reason whereof he had knowledge of where they were on the night in question, and that shortly after the burglary he had in his possession some of the stolen property, and disposed of a part thereof at an unreasonably low price,—not more than half its market value. This evidence, with the evidence introduced, tending to establish the corpus delicti, made a case proper to be submitted for the jury, and in overruling the respondent's motion for a verdict there was no error. Wills, Circ. Ev. 162, 163.
In the fore part of the charge the court instructed the jury at different times, in substance, that the whole evidence which connected the respondent with the breaking and...
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...Com. v. McGorty, 114 Mass. 299; Knickerbocker v. People, 43 N.Y. 177, 181; Neubrandt v. State, 53 Wis. 89, 9 N.W. 824; State v. Fitzgerald, 72 Vt. 142, 47 Atl. 403, 14 Am.Crim.Rep. The presumed fact, that the possessor stole the property in the burglary, has a rational connection with the p......
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E. T. & H. K. Ide v. Boston & M. R. R.
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