State v. Fournier

• Citation: 68 Vt. 262,35 A. 178
• Court: United States State Supreme Court of Vermont
• Decision Date: 14 March 1896
• Parties: STATE v. FOURNIER et al.

35 A. 178

68 Vt. 262

STATE

v. FOURNIER et al.

Supreme Court of Vermont. Chittenden.

March 14, 1896.

Exceptions from Chittenden county court; Thompson, Judge.

Rose Fournier was convicted, jointly with Effie Cox, alias Effie Whalen, of manslaughter, for the killing of Alfred Fournier, her husband, and excepts. Exceptions overruled.

Charles T. Barney, for respondent.

R. E Brown, State's Atty.

TAFT, J. The respondent was indicted jointly with Effie Cox, alias Effie Whalen, for the murder of Alfred Fournier, and was convicted of manslaughter. Ten exceptions to the ruling of the county court were taken during the trial, and have been argued in behalf of the respondent.

1. Before the jury were Impaneled the respondent moved for a separate trial, and urged, in support of the motion, that upon trial she would be prejudiced by the introduction of testimony, admissible against her co-respondent, tending to show certain acts and declarations of the latter, that would not be admissible against this respondent, were she tried separately, and the only certain way to avoid such prejudice was for the court to order separate trials. The motion was denied, and it is now argued that such denial was error. In State v. Stoughton, 51 Vt. 362, the question arose as to how many peremptory challenges each respondent in a joint trial was entitled to; and in the discussion of the question the court, per Royce, J., said: "The respondents were not entitled to separate trials as a legal right. It was discretionary with the court whether to grant them separate trials or not." In State v. Meaker, 54 Vt 112, the question was raised, and it was held by the court that granting separate trials to respondents jointly indicted was a matter of discretion. After the jury was impaneled in that case one of the respondents withdrew his plea of not guilty, pleaded guilty, and the other respondent was tried alone. When the jury were being impaneled three jurors were peremptorily challenged by the respondent, who subsequently pleaded guilty, and the other respondent objected to the discharge of the three so peremptorily challenged. The objection was overruled, the three jurors discharged, and an exception taken. This was the only question as to separate trials that remained, and it was ruled against the respondent To this extent the question has been adjudicated by this court. It is now fairly before us, and we hold that, when two or more persons are jointly charged in the same indictment with a criminal offense, they have no right by law to be tried separately, but such separate trial is within the discretion of the trial court. This was so held, and the reasons therefor fully stated and considered by Mr. Justice Story, in U. S. v. Marchant, 12 Wheat 480. And see the Anarchists' Case (Spies v. People) 122 Ill. 205, 12 N. E. 865, and 17 N. E. 898. Nothing is disclosed by the record in this case to indicate that the discretion of the county court in denying the motion was not wisely exercised. If it is not in any case, what remedy is available to the respondent we are not called upon to discuss.

2. When the jurors were being impaneled the court ruled that each respondent was entitled to exercise six peremptory challenges, following State v. Stoughton, 51 Vt 364, and that the state was entitled to exercise two such challenges as to each respondent, under V. S. § 1914, which reads: "In criminal prosecutions one-third the number of peremptory challenges to the jurors shall be allowed to the state which are by law allowed the respondent," etc. The above ruling, which was excepted to, was in accord with the words and spirit of the statute. The state, in fact, challenged but two jurors peremptorily, and the respondent but three. Therefore the latter was not harmed by the ruling, if erroneous. All that a party is entitled to is to be tried by an impartial jury. The right of challenge is not the right to select, but to exclude. It does not enable the prisoner to say who shall try him, but to say who shall not. The accused does not complain that she was not tried by an impartial jury. It is not even suggested that any one juror serving upon the panel was not competent and impartial. She has no reason to complain of any ruling made by the court in regard to the selection of the panel.

3. Certain testimony was received in evidence which was admitted against the respondent Cox only, and the jury were instructed at the time that it was not admissible against this respondent. The testimony was objected to, and it was admitted under exception taken by the respondent Fournier, and this was the only exception taken during the trial in respect to such testimony. This question appears in State v. Fuller, 39 Vt 74. In detailing the confessions of Fuller, a witness was allowed, against the respondent Willey, to repeat portions of the confession which tended to implicate Willey; and the court ruled that the whole confession must be received, as Fuller made it, but that it would be evidence only against him, and so instructed the jury, and the defendant Willey excepted. After discussing another question, which required a reversal of the judgment, the court said, "In other respects, we think the county court committed no error." The same question was made in the homicide case of State v. Cram, 67 Vt. 650, 32 Atl. 502. The state offered in evidence the declarations of Bow, made after the alleged killing, and not in the presence of the respondent. The respondent objected and excepted for that they were not admissible as against him. The evidence was admitted as against Bow, and the jury were instructed that they must consider it only as against him. This point was strongly urged by the respondent's counsel. Munson, J., in the opinion, said: "Whatever was admissible against one was admissible on the trial of both, under proper restrictions as to its effect. This included evidence of any statements of Bow which had a legitimate tendency to incriminate him, even though of a character prejudicial to Cram." It may be noted that in this case neither of the respondents asked for a separate trial, and the two were tried together, but this fact does not affect the rule under consideration.

4. Dr. Linsley, conceded to be an expert, was improbed as a witness for the state. He testified that he had made a microscopical examination of the stomach and intestines, and the contents thereof; and his testimony tended to show that the examination was minute, and much in detail. He testified as to the condition of the stomach and intestines, and the different portions thereof, and was asked his opinion, based upon his examination, and assuming that certain quantities of tartar emetic were found after death in the stomach and in the intestines of Alfred Fournier, as to what caused his death. He answered, "The presence of tartar emetic." This testimony was objected to generally, and it is now insisted that the question was not properly limited. This exception is not well taken. His opinion was limited to...