State v. Flint

• Decision Date: 29 May 1888
• Citation: 60 Vt. 304,14 A. 178
• Court: Vermont Supreme Court
• Parties: STATE v. FLINT.

14 A. 178

60 Vt. 304

STATE

v. FLINT.

Supreme Court of Vermont. Addison.

May 29, 1888.

Exceptions from Addison county court; ROWELL, Judge.

Indictment for burglary. Trial by jury, Addison county court, June term, 1887; ROWELL, J., presiding. Verdict, guilty. Exceptions by the respondent. The state's evidence tended to show that the respondent, who lived in Hancock village, at a distance of 66 rods from the hotel, and one Charles Blair, who lived about one mile from said hotel, and who was a witness on the part of the state, on Friday, June 6, 1884, spent a considerable portion of the day together, fishing in the stream which runs through said village, and while so fishing partially planned the crime upon which the indictment is founded; that during the evening of the same day they met at the hotel in the center of said village, and consummated the arrangement for the commission of the crime; that respondent then left Blair at the hotel, went to the post-office, 30 rods distant, where he found Jennie D. Whitton, whom he accompanied to the house of one Lewis, 141 rods distant from said hotel, and then returned to the hotel, and rejoined Blair; that soon afterwards, about 10 p. M., they started out to commit the crime; that the route pursued by them was indicated by a red dotted line upon the map used on the trial; that upon starting out from the hotel respondent went around the west end of the hotel, and Blair the east end, up the road towards Granville, to where the Blair road, so-called, intersects the Granville road, then up the Blair road to a certain butternut tree, near which he met respondent; that from said tree they went by the nearest course to the house of James Welch, distant from the hotel by the route aforesaid 396 rods, where the burglary was committed; that Welch was 80 years of age, living alone, and when found by respondent and Blair was abed with his pants on, in which was a wallet containing $90 in bank bills and some promissory notes; that Welch was throttled, and the wallet taken from his pants pocket; that they retraced their route as far as the butternut tree, where they separated, Blair going up the Blair road to his house, where he arrived at about 11:40 o'clock p. M., and respondent going down the Blair road and Granville road, past the hotel aforesaid, where he appeared at about 11 p. M.; that the night was light, the moon shining, obscured somewhat by light scattering clouds; that on their way to Welch's they stopped to tie on some cloth masks, and on their return to find a shoe lost off by Blair in his haste to get away, and to divide the money which they had stolen; that respondent and Blair were arrested on Tuesday morning following the commission of the crime, and the examination before the justice was held on the following Thursday. The case was tried at the December term, 1885, and again at the December term, 1886, upon both of which trials Blair was improved by the state as a witness respecting all matters connected with the crime, and he was in like manner improved on this trial. Before the introduction of any evidence the respondent's counsel claimed in his opening statement to the jury that respondent left said hotel at about 9: 30 P. M., the night of the robbery, went to said post-office, and from there with said Whitton to said Lewis', leaving the latter place at about the time the clock in Lewis' house struck ten, and went leisurely home, where he arrived at about 10: 30, and was up stairs and in bed at 11 P. M.; that it would appear that by the account of the transaction by Blair upon former trials as to the time when they left the hotel and the time when Blair arrived home, and the time when the state claimed that the respondent was seen passing the hotel on his return from Welch's, the time was too limited to permit of their going, committing the crime, and returning.

The first exception is sufficiently stated in the opinion. As to the second exception, the respondent requested that the state be required to exercise both its peremptory challenges before he was required to exercise any; but the court ruled that the state should exercise only one peremptory challenge at first, and that the respondent should then exercise three peremptory challenges before the state exercised its second peremptory challenge, and the respondent his other three afterwards. Thereupon the state exercised its first peremptory challenge, and the panel was filled Then the respondent exercised two peremptory challenges, and, the panel being filled, he said that he did not desire to exercise any further peremptory challenges, as the panel then stood. The state then exercised another peremptory challenge, and the panel was filled. As some of the jurymen were out deliberating upon their verdict in another case, this exhausted all the regular jurors in attendance upon court; and the respondent's counsel then stated that he should have challenged one more of the panel, as it then stood, peremptorily, but that, all the regular jurors for the term having been drawn, it would necessitate the taking of a talesman, and he therefore declined to make use of any further peremptory challenges. As to the third exception, it appeared that the state improved the said Whitton as a witness, who gave material testimony as to the hour when the respondent left her, as aforesaid, at the Lewis house, to the effect that the clock struck 10 about five minutes after he left her; and that the witness identified four letters as having been written to her by the respondent in the month of June, 1884, while he was in jail. Upon cross-examination, with a view to impeach the witness, the respondent's counsel drew out the following facts, viz.: That the witness was summoned and improved as a witness by the respondent at the trial of this cause at the December term, 1885, and again summoned by respondent to the trial at the December term, 1886, but then improved by the state as a witness; that at said last-named term, upon Saturday, she was brought to Middlebury by said Blair, and the trial began the following Monday; that she had retained said letters in her possession until the Saturday aforesaid, when she gave them, upon his demand, to the state's attorney; that she remained at the Addison house over Sunday with Blair and his wife, and was in Blair's company a considerable portion of the time during the trial, while taking their meals and at other times, and in their room at the hotel more or less; that upon cross-examination by the state on the first trial, in December, 1885, she had testified that she corresponded with respondent while in jail as aforesaid. The reporter's minutes of the testimony of this witness, when first called to the stand on this trial, may be referred to, that the character of her cross-examination may more fully appear. For the purpose of sustaining the witness against the impeachment resulting from the cross-examination, in respect of her intimacy with Blair and his imputed influence over her, prompting her to falsify, the state, against respondent's objection, was permitted to show in its opening that at the December term, 1885, she, upon direct examination by respondent, gave substantially the same testimony as to the time when the clock struck at Lewis' house with reference to the time respondent left her on the night of the burglary as she gave upon this trial. The fourth exception: For the purpose of showing how long it would take to travel the distance from the hotel by way of said butternut tree to Welch's, and to return to said tree, and thence by the Blair road to Blair's house, the state was permitted to show by one Jones, who walked without stopping over substantially the same route from the hotel to Welch's house, and thence back to the butternut tree, as the state's evidence tended to show was traveled by respondent as aforesaid on the night of June 6, 1884, and from said tree by the Blair road to Blair's house, how long it took him to do so; also by a deputy-sheriff, Olin A. Smith, hereinafter referred to, and R. E. Dunham, who walked together, without stopping, over the same course in the day-time while the trial was in progress, how long it took them to do so. Jones, Smith, and Dunham performed this journey at the instance of the state, and for the purpose of giving testimony in the cause. It appeared that part of the way thus walked over was through woods and on a side hill, and was more or less rough and stony, and that there was no path in which to walk. And it did not appear that these witnesses had any previous knowledge of the route Blair claimed to have followed in going from the butternut tree to Welch's and in returning to the tree. Their testimony tended to show that no one acquainted with the route ever pointed it out to them on the spot, but that their knowledge of it was derived from description by those acquainted with it, and that they followed as near as they could. The fifth exception: Blair, in his direct examination, testified that, while on the fishing ground as aforesaid, respondent told him that he could make some masks to wear while committing the crime out of some black pieces of cloth that his mother had in a trunk upstairs in respondent's room, and that such masks were furnished by respondent, and used by them in the commission of the crime. The respondent denied having had any talk with Blair when fishing about robbing Welch, and claimed that the fact that the officers found pieces of black cloth in a trunk as aforesaid might have been, and probably was, communicated to him before he testified before the justice, and that this was how he came to know anything about black cloth. The state was then permitted, against respondent's objection, to show that Blair's testimony before the justice, at said court of examination, respecting the conversation with respondent on the fishing ground about the making of the masks from the black pieces of cloth as...