State v. Goyet

Decision Date07 May 1957
Docket NumberNo. 1286,1286
Citation120 Vt. 12,132 A.2d 623
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Lionel R. GOYET.

Frederick M. Reed, Atty. Gen., Charles E. Gibson, Jr., State's Atty. (Caledonia County), St. Johnsbury, for plaintiff.

Frederick G. Mehlman, Montpelier, for defendant.

Before JEFFORDS, C. J., and CLEARY, ADAMS, HULBURD and HOLDEN, JJ.

ADAMS, Justice.

The respondent was indicted by a grand jury in Caledonia County for murder in the first degree of Archie L. Webber. The respondent pleaded not guilty and not guilty by reason of insanity. He also filed a motion for a change of venue. This motion was granted and the case removed to Windsor County where it was tried by jury at the June Term, 1956. The verdict was guilty of murder in the first degree. After verdict and before entry of judgment on the verdict, the case was passed to this Court on exceptions of the respondent.

The respondent has briefed his exceptions under headings of exception 1 to 23 inclusive, several of these headings contain more than one exception. There are other exceptions that are not briefed, so they are waived. Strout Realty Agency v. Wooster, 118 Vt. 66, 71, 99 A.2d 689.

It will be helpful to make a general summary of the factual situation as disclosed by the evidence so that it may serve as what might be termed a background for the discussion of the questions and exceptions briefed.

About one thirty o'clock in the morning of September 14, 1955, an injured man was discovered by two people who were in an automobile driving northerly along U.S. Route 5 between Lyndonville and Barton. The body was lying on the westerly side of the highway and just off the edge of the hard surface where the so-called Sutton Road joined route 5. These two people called the State Police who came at once. The injured man, who was unconscious, was taken by ambulance to the hospital at St. Johnsbury where he died shortly after seven o'clock that morning. An autopsy was performed and it disclosed that the victim had been shot twice in the head and that one bullet had shattered into several pieces of lead, resulting in injury to the brain and causing death. It was a small caliber bullet. The victim was identified at the hospital by the doctor who first attended him upon admittance as Archie L. Webber and he was also identified by a nurse at the hospital. She was a sister of the victim.

An intense investigation was started by the State Police and enforcement officers. We detail some of the facts disclosed by that investigation that appeared in evidence at the trial. Robert Messier and his wife testified that on the evening of September 13 as they were travelling from Lyndonville to Barton on route 5, at about 10:30, they picked up a hitch-hiker and let him out at Barton at about 11 o'clock in front of the Valley residence where he was staying. Joyce Pickel, then of Barton testified that she was driving in an automobile on the evening of September 13 at about midnight and saw a hitch- hiker on the train overpass just south of Barton who was dressed in a light sun-tan shirt and khaki pants and bare-headed. He was headed south toward Lyndonville: that she proceeded to Lyndonville where she met the party whom she intended to meet; that they then headed back to Barton and discovered the injured man; that they called the State Police. Two troopers learned these facts during the evening of the 14th when they were at Barton investigating the matter. They then went to the Valley residence late that evening. They found Mrs. Valley and Mrs. Goyet, the wife of the respondent there. A man was sitting in a chair watching television and he was dressed in sun-tan pants and shirt with the shirt outside of the pants. They asked him his name and he said it was Lionel Goyet. He was asked to step outside which he did. The troopers, because of a remark made to them by Mrs. Valley, removed from his person a belt, holster and gun. It was a twenty-two caliber 6-shot Sturm Ruger revolver. It contained 3 unexpended and 2 expended shells. There was one empty chamber. The 2 expended shells were to the right of the hammer position of the gun and the cylinder moves to the right as the gun is fired. The respondent was then arrested, handcuffed and taken in the automobile of one of the troopers to State Police Headquarters at St. Johnsbury.

While proceeding from Barton to St. Johnsbury, the trip taking 25 to 30 minutes, the respondent told the troopers about his actions during the evening of September 13 and all of the 14th until the troopers took him into custody that night. What he told them amounted to a verbal confession. Later at State Police Headquarters this confession was written out in more detail by one of the troopers, signed by the respondent on each page, witnessed by the two troopers who heard it and to whom he made the verbal statements in the automobile on the trip from Barton to St. Johnsbury. This written confession was introduced, subject to an objection and exception of the respondent.

Webber's pickup truck was parked on a side dirt road leading off route 5 and a considerable distance from the place where the body was found. There were town and country winter treads on the rear tires and the same type of a tire mark was seen on the ground in the gravel where the body was found. The troopers also found a footprint where the truck was parked. A photograph and cast were made of this print. Marks shown on the heel thereof were similar to marks on the heels of the respondent's shoes.

Exception I

The first witness for the state, Joyce Pickel, testified that she left Barton for Lyndonville by automobile on the evening of September 13 at midnight and she saw a hitch-hiker going toward Lyndonville on a train overpass not far from Barton. She said that he had on a light sun tan shirt and khaki pants and was not wearing a hat. She identified the respondent in court as the person whom she saw. She testified about discovering the body of Webber on the return trip from Lyndonville. When asked 'By what route did you go to Lyndonville?' She replied, 'I was going on route 5A'. It was important for the state to show that the respondent was seen on route 5 and not on 5A as Webber's body was found on route 5. Later the examiner for the state, in taking up again with the witness the route by which she came south from Barton to Lyndonville, asked her, 'Was it by route 5?' The witness was allowed to answer the question over the objection of the respondent that it was leading and an exception allowed. She answered. 'Well, I am not too familiar with the routes, but I believe that route 5A was it.' The form of a question on an objection that it is leading is a matter of discretion for the court. State v. Bedard, 65 Vt. 278, 284, 26 A. 719; In re Sawyer's Will, 102 Vt. 473, 478, 150 A. 128. A ruling resting in the discretion of the trial court will not be reviewed here unless an abuse of discretion is shown and the contrary not appearing, it will be taken that the ruling was made as matter of discretion. State v. Teitle, 117 Vt. 190, 195, 90 A.2d 562. Any discretionary ruling is not subject to review here unless it clearly and affirmatively appears that such discretion has been abused or withheld. Bigelow v. Denis, 119 Vt. 21, 25, 117 A.2d 261. No abuse of discretion has been shown here.

Furthermore, the respondent was not prejudiced by the ruling. Error works a reversal only when the record satisfies the court that the rights of the excepting party have been injuriously affected thereby. Supreme Court Rule 9; Parker v. Hoefer, 118 Vt. 1, 10-11, 100 A.2d 434, 38 A.L.R.2d 1216. In the instant case several other witnesses testified that they saw a hitch-hiker wearing a sun tan shirt and pants on route 5 southerly of Barton at about midnight and one of those witnesses identified the respondent in court as the hitch-hiker whom he saw. It also appears by uncontradicted testimony that the train overpass is on route 5 and there is none on route 5A. The ruling was without error.

Exception 2

Early in the trial several photographs taken at the place where Webber's body was found were offered in evidence. They showed the body and various other objects. The trooper who took them testified that they accurately represented the terrain and the objects portrayed. The objection of the respondent was that they were irrelevant, immaterial and incompetent; that photographs are admissible only as an aid and guide and not to be received as direct evidence and there was nothing on the present state of the evidence to connect or associate them with the respondent. The state then offered to connect them up later and subject to that condition they were admitted and the respondent allowed an exception.

The respondent in his brief claims that to allow the photographs to be admitted as direct evidence at that stage of the trial was both an abuse of discretion which prejudiced the respondent and an error of law. The accuracy of the photographs was vouched for by the trooper who took them and no question is made in regard to that or about the subsequent connection of them with the respondent.

The order of the reception of evidence lies in the discretion of the trial court and unless there is an abuse of such discretion the ruling is not revisable here. Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 407, 177 A. 631. No abuse of discretion has been shown here.

The respondent relies upon the case of State v. Gravelle, 117 Vt. 238, 241, 89 A.2d 111. It does not help him. There the objection was to the verification of the photographs as correct representations of the locus at the time of the event in question. There, too, they were not offered as direct evidence but only in connection with the testimony of the witness who took them. In Beattie v. Traynor, 114 Vt. 495, 501, 49 A.2d 200, this Court held that there was no error in admitting a photograph that was received for the purpose...

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