State v. Gravelle, 1797

• Decision Date: 06 May 1952
• Docket Number: No. 1797,1797
• Citation: 89 A.2d 111,117 Vt. 238
• Parties: STATE v. GRAVELLE.
• Court: Vermont Supreme Court

Page 111

89 A.2d 111

117 Vt. 238

STATE v. GRAVELLE.

No. 1797.

Supreme Court of Vermont.

May 6, 1952.

Frederick G. Mehlman, Deputy Atty. Gen., Richard E. Davis, State's Atty., Barre, for plaintiff.

C. O. Granai, Barre, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

ADAMS, Justice.

The respondent was tried by jury at the March Term 1951 of the Washington County Court on an indictment charging manslaughter for the killing of his wife, Jennie Gravelle. The verdict was guilty and the case is here on the respondent's exceptions.

The respondent and his wife with one Shute occupied a one room lumber camp in the Town of Woodbury in which they were living while the respondent and Shute were cutting pulp. On Saturday afternoon, January 13th 1951, they all went to Hardwick. The respondent and Jennie returned to the camp that evening. The procured some wine in Hardwick, drank some there, took some back to camp and drank more there. Both were heavy drinkers. Sunday morning they drank more wine, had an argument, scuffled and had a fight. They fell against the stove and broke it. The respondent testified that he sat Jennie so forcefully in a chair that it collapsed and broke. They spent the rest of the day in bed and were in bed when Shute returned to the camp that afternoon. Shute saw the broken stove and patched it. Jennie stayed in bed most of the day Monday. Tuesday she was very sick. She grew progressively worse and on Friday morning, January 19th, she was taken to Hardwick to the home of the respondent's father and a doctor called. He saw her at various times until she died on Saturday night, January 20th. The state pathologist performed an autopsy. It disclosed approximately 65 bruises on the surface of much of her body. Some of these were superficial. About ten percent were fairly deep, some as much as three quarters of an inch. She had had heart trouble for a considerable number of years. The autopsy showed a heart between two and three times its normal size and which had been damaged by rheumatic fever many years previously. The condition directly leading to death was 'calcific aortic stenosis'.

The state claimed and its evidence tended to show that the injuries and bruises on Jennie's body were inflicted by the respondent and contributed proximately to her death. The respondent claimed and his evidence tended to show that all he did was to defend himself and that the injuries and bruises were not a contributing cause of death.

Exception 1. Four photographs of the interior of the camp were offered by the state. They were taken by an officer of the State Police during the evening of January 22nd, two days after Jennie's death and were taken from different positions. No one of them showed the entire interior of the camp or all of the objects therein. The officer who took them testified and identified the part of the camp each photograph represented and that the four together accurately and faithfully represented the appearance of the inside of the camp as he saw it. They were then shown the witness Shute. He testified that one showed the bed in which the respondent and Jennie were lying when he entered the camp on Sunday afternoon; another showed the heating stove that he found broken and which he fixed; another showed his bed, the heating stove, kitchen table and also a broken chair lying on the floor that he didn't see on Sunday; that the other showed the cookstove and a chair with a coat on it. He then testified that the camp as shown in the photographs looked the same and the various objects shown in them were in the same position as on Sunday afternoon, except for the broken chair on the floor which was not there then and a steel foot locker with a big snap lock on it that was located beside the bed where the respondent slept but was not there in the photograph of that part of the camp.

The photographs were then offered by the state in connection with the witness' testimony. They were received over the objection and exception of the respondent. The objection was that it was apparent from the photographs and the testimony of the witness that the objects or several of the objects in each of the pictures were placed or posed by someone and that it was apparently a posed condition, artificially created by the photographer. There was the further objection that there was no evidence to connect the pictures with anyone who knew about the condition of the camp at the time they were taken.

Models, maps, plans and photographs belong, in the law of evidence, to the same class, and are admissible only when properly verified. That is to say, preliminary evidence is required to show that they are sufficiently accurate to be helpful to the jury. But this preliminary evidence is addressed to the court,--the preliminary question of the sufficiency of the verification, though a question of fact, is for the determination of the court and is not, ordinarily, reviewable. Hassam v. J. E. Safford Lumber Co., 82 Vt. 444, 449, 74 A. 197. The whole question of the admissibility of photographs is one largely in the discretion of the trial court and the rulings thereon are not ordinarily reviewable. Leland v. Leonard, 95 Vt. 36, 38, 112 A. 198; Goulette's Adm'r v. Grand Trunk Ry. Co., 93 Vt. 266, 271, 107 A. 118; Hutchinson v. Knowles, 108 Vt. 195, 204, 184 A. 705; State v. Frotten, 114 Vt. 410, 417, 46 A.2d 921.

Changes in the premises between the time of the occurrence and the time of the taking of photographs do not necessarily operate to exclude the latter. Changes in the conditions are open to explanation. Aldrich v. Boston & Maine Railroad, 91 Vt. 379, 384, 100 A. 765; Dent, Adm'r v. Bellows Falls & Saxtons River St. Ry. Co., 95 Vt. 523, 533, 16 A. 83; State v. Longe, 96 Vt. 7, 9, 116 A. 81.

Under the offer here and as received in connection with the witness' testimony, the photographs were not independent evidence but merely to aid the jury to a proper understanding of the testimony of the witness. Hassam v. J. E. Safford Lumber Co., supra, 82 Vt. at page 448, 74 A. 197; Neill v. Ward, 103 Vt. 117, 159, 153 A. 219.

As we have seen, the accuracy of the photographs was testified to by the officer who took them and the witness Shute testified about them as compared with the camp as he had occupied it with the respondent and his wife and when he returned to it and found them in bed on Sunday afternoon.

The respondent in his brief and on oral argument calls our attention to a broken chair on the floor shown in two of the photographs and a part of it shown on the table in two of them and to a coat on a chair with stains on it also shown in two of them. When the witness Shute was testifying in answer to a question on direct examination he mentioned the coat as not being on the chair on Sunday afternoon and at the request of the respondent the answer was struck. In his objection to the admission of the photographs the respondent did not call the attention of the trial court to any of the objects that he mentions here to substantiate his claim that the photographs were posed or the objects placed. He gave the court no information about his claim in that respect. He did not differentiate between any of the photographs. He did not call the court's attention to any testimony that any of the objects shown were placed or posed, nor does he now call our attention to any and we find none. The ground of his objection was entirely general.

It was incumbent upon the excepting party when he stated the ground of his objection to make it sufficiently explicit to apprise the trial court of the real point of it. Grant v. Goodrich, 109 Vt. 462, 469, 199 A. 246, and cases cited. In Davis, Adm'r v. Raymond, 103 Vt. 195, 199, 152 A. 806, 808, in which testimony of an experiment to test visibility of certain objects was admitted and excepted to on the ground that the experiment was made at a different hour of the night and under entirely different circumstances and conditions than those existing at the time of the accident, this Court in holding the exception too general said, 'It did not call the court's attention to a single particular wherein it was claimed the conditions were different.' That is the situation here.

Moreover, the coat in question was introduced as an exhibit by the state, without objection, as belonging to the respondent. There was testimony, without objection too, that the spots on it contained human blood. Also the broken chair in question with it broken parts was introduced as an exhibit by the respondent as having been found in the camp by the sheriff on the day after the photographs were taken and the respondent testified that it was the one in which he sat his wife so forcefully that it collapsed. This exception is not sustained.

Exception 2. During the direct examination of the state's witness, Dr. Densmore, he testified to his examination of Jennie on the morning of the 19th and seeing bruises on her chest, arms and forehead which he described as multiple bruises and that he did not examine the rest of her body. He then testified that the respondent explained how the bruises occurred telling the witness that he (the respondent) and his wife were in the logging camp and that she had a severe nosebleed; that he was unable to stop it so went to the brook to get some cold water and while he was gone she fainted and fell against the stove and it toppled over on her and she was on the floor in a faint when he came back to the camp. The witness was then shown photographs of Jennie's body taken after her death which were taken to show the bruises and marks on her body and he identified a considerable number of them as the ones he had seen while she was alive. He was then asked to give his opinion as to what could have caused the bruises that he observed. Subject to an objection and exception that he (the witness) didn't make an examination of the bruises, just looked at...