State v. Fox, 1020
| Decision Date | 01 May 1962 |
| Docket Number | No. 1020,1020 |
| Citation | 123 Vt. 82,181 A.2d 74 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Gary Paul FOX. |
Arthur E. Crowley, Jr., State's Atty., Rutland, for plaintiff.
Thomas F. Mangan, Rutland, (Edward G. McClallen, Rutland, on the brief) for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The respondent, Gary Paul Fox, was found guilty by jury verdict at a session of Rutland Municipal Court of (1) without the consent of the owner, taking and operating an automobile for his own use and pleasure, and (2) operating said motor vehicle along the public highway while his license and right to operate a motor vehicle was suspended by the Commissioner of Motor Vehicles. The respondent moved at the close of the State's evidence that a verdict of acquittal be directed by the trial court, and renewed his motion at the close of all the evidence in the case. It is upon the denial of these motions and his exceptions thereto, that respondent has briefed his appeal before this Court.
By reason of his exception to the action of the trial court in denying his motion for a directed verdict of acquittal the respondent has challenged the substance of the proof against him and we are required to test the evidence in its aspect most favorable to the State, free from the force of modifying evidence. State v. Tatko, 119 Vt. 459, 460, 128 A.2d 663; State v. Hart, 119 Vt. 54, 55, 117 A.2d 387; State v. Perras, 117 Vt. 163, 164-165, 86 A.2d 544.
No evidence was offered by the respondent on his behalf in the trial below. The evidence offered by the State disclosed the following factual situation.
One John Bogart, who lived in the same premises on which he operates an automobile service station on Woodstock Avenue, in the Town of Rutland, was awakened by a loud knock on his door in the early morning of April 29, 1961. Going to the door he found his caller to be the respondent, whom he had known for a long period of time. The respondent asked Bogart for some gas. Bogart refused this request and then observed the respondent walk toward a car parked by the gas pumps after this refusal. Upon returning to his living quarters Bogart was informed by his wife that she heard footsteps around the premises. He then called the State Police Barracks. After this phone call, Bogart went outdoors and inspected the premises but found no one there.
Trooper Rosen of the State Police arrived at the Bogart premises within a few minutes after Bogart's inspection. He found a 1952 dark blue Pontiac parked in front of the gas pumps, with the lights out and the keys in the ignition. After a check of the Bogart premises he proceeded to cruise nearby roads in search of a suspect when he was directed by radio to return to the Bogart premises. This radio message was in response to a second phone call from Mr. Bogart to the State Police Barracks that he had sighted the respondent crossing from the opposite side of the road toward the service station.
As Trooper Rosen approached the station he sighted the respondent crossing the highway from the station toward the opposite side of the road. Upon a call from the State Police Officer the respondent stopped and then got into the police cruiser at the officer's invitation. When questioned on what he was doing the respondent replied 'out walking.'
Upon again observing the Pontiac automobile the State Police officer observed that the lights had been turned on during his absence from the scene, and that the keys were missing from the ignition. Upon questioning the respondent as to any activities he might have had with the car, its lights and the keys, the officer received the answers, 'what car', 'what lights', 'what keys.'
At about this time, Officer Cameron of the Rutland City Police Department, accompanied by George Fox, an uncle of the respondent, drove into the Bogart service station. Mr. Fox identified the Pontiac car as his property which he had left in his yard on Gibson Ave., in the City of Rutland, before he retired on the evening of April 28th. He had given no one permission to use his car, and had no idea how it had arrived on Woodstock Avenue. Mr. Fox asked the respondent 'Why did you do it', to which the respondent made no reply.
The respondent was then questioned as to the whereabouts of the keys of the Fox car, which were still missing. The respondent borrowed a flashlight from Trooper Rosen, went across the road to where the officer had originally apprehended him, picked up the keys and gave them to the officer. Upon Mr. Fox being given the keys, he started his vehicle with them.
The respondent in his brief argues that all of the evidence which resulted in a conviction of the respondent was circumstantial, that it failed to exclude every reasonable hypothesis consistent with the innocence of the respondent, and therefore it could not sustain the verdict of guilty. As the respondent correctly states in his brief the burden of proof was upon the State to show that the offense was...
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State v. Harrington
...that the respondent is guilty, does not avail him. The rule applies only where the evidence is entirely circumstantial. State v. Fox, 123 Vt. 82, 85, 181 A.2d 74; State v. Tatko, supra, 119 Vt., at 465, 128 A.2d 663; State v. Marston, 82 Vt. 250, 251, 72 A. The law affords him a presumption......
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...Accord: 1 Wigmore on Evidence (3rd ed), § 41, p. 434, Et seq. See, also, 29 Am.Jur.2d, Evidence, § 166.5 Similarly, see State v. Fox (1962), 123 Vt. 82, 181 A.2d 74.6 At the time of defendant's motion for a mistrial, which motion was made Before the prosecutor referred to the Chevrolet as a......
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