State v. Graves, 952
| Decision Date | 01 May 1956 |
| Docket Number | No. 952,952 |
| Citation | 119 Vt. 205,122 A.2d 840 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Lee GRAVES. |
Rudolph J. Daley, State's Atty., Newport, for plaintiff.
Maxwell L. Baton, Newport, for defendant.
Before JEFFORDS, C. J., CLEARY, ADAMS and HULBURD, JJ., and HOLDEN, Superior Judge.
The respondent was prosecuted in Orleans Municipal Court for careless and negligent operation of a motor vehicle resulting in the death of one Carmen Roy. Trial was by jury and a verdict of 'guilty' was returned. The respondent brings his exceptions to this Court claiming error in a number of respects.
The first exception briefed by the respondent is to the form of the oath administered to the jury. He claims that although the oath administered conformed to V.S.1947, § 10611, Form 3, it was in violation of the State's Constitution. It is our policy to consider constitutional questions only when it has been determined that the case is not to be disposed of on other grounds. State v. Hall, 96 Vt. 379, 382, 119 A. 884. Accordingly, we will proceed to deal with the other exceptions briefed by the respondent.
The first of these are relative to the admission of certain photographs in connection with the testimony of the State's witness, Guy Poissant. To consider these exceptions properly, an understanding of what Poissant's testimony was is necessary. Poissant lives in Rock Island, Quebec. He is a young man twenty-two years of age. On May 15, 1954, he took his motorcycle and went to the home of a young lady by the name of Carmen Roy. He invited her to go out with him for the evening and they left Rock Island on the motorcycle with Miss Roy behind Poissant. They came to Newport, Vermont and spent the evening there. At about 11:45 that night, they started on the return trip. As they were leaving Newport on East Main Street, they had reached a point near the intersection of East Main Street and Sias Avenue when Poissant saw a car coming toward him, and then a second automobile pulled out from behind the first car, trying to pass it, so that there were four headlights bearing down on him coming from the two cars side by side on the road. Poissant pulled to the right trying to evade the passing car. There was a sound of brakes and a head-on collision. Poissant and his passenger were thrown into the air. Although Poissant was not badly hurt, Carmen Roy died almost instantly. Police officers came to the scene shortly; pictures and measurements were taken.
Two of the photographs taken were shown to witness, Guy Poissant. They are State's Exhibits No. 1 and No. 2. Both purport to be pictures taken at the scene of the accident, showing the witness' motorcycle lying near the edge of the road and the respondent's automobile just beyond it standing obliquely athwart Poissant's right lane as he was proceeding toward Rock Island. The ground beneath where the car stands is covered with a pool extending out from under its radiator. A smaller pool of a different shade surrounds the shattered motorcycle. The witness testified that the former was water from the radiator of the respondent's car and the latter oil from the tank of the motorcycle. Both pictures show practically the same scene from slightly different angles, State's Exhibit No. 1 being a little closer view. Poissant was asked whether or not either his motorcycle or the automobile had been moved after the accident before the officers got to the scene. He answered, 'I don't believe they had been moved.' To the question: 'Is that a fair representation of what you saw that night after the collision?' Poissant replied, 'Yes'. He also testified that State's Exhibit No. 2 is a fair representation of the condition of his motorcycle after the collision. To be sure Poissant afterward qualified his statement somewhat saying, In the end, however, he stated again that he believed that the vehicles weren't moved although he was not sure.
At the trial, the respondent's only concern in connection with the photographs was what they appeared to show as to the extent of the damage to the motorcycle. Counsel for the respondent expressly stated that he had no objection to the photographs so far as they showed 'where it lay'. He now claims that the exhibits were inadmissible because the witness testified that he could not be entirely certain as to whether the vehicles, following the accident, were in the exact position shown by the pictures, although he thought that they hadn't been moved. Respondent cannot object in this Court to that which he had no objection to in the trial court. The appellant is limited to the objection he raised below. Valiquette v. Smith, 108 Vt. 121, 125, 183 A. 483; Lunnie v. Gadapee, 116 Vt. 261, 265, 73 A.2d 312.
Even if the respondent's exception reached the objection he is now making, no error is shown. By its ruling, the court below impliedly found that the witness' testimony sufficiently verified the photographs and that they were so substantially accurate as to be helpful to the jury. No abuse of discretion appears. In the absence of such an abuse, the court's ruling below will not be interferred with. State v. Gravelle, 117 Vt. 238, 241, 89 A.2d 111. It might be added that when the respondent later took the stand he testified that State's Exhibit No. 1 fairly represented the position of his car when it came to rest after the accident. In view of his testimony, no harm can now be claimed in that respect. Compare State v. Pierce, 88 Vt. 277, 278, 92 A. 218.
The respondent also excepted to the admission of State's Exhibits No. 9, No. 10, and No. 12. These were diagrams of the highway with measurements to various points. They were prepared at the scene by a Newport police officer who did not claim that they were drawn to scale. The respondent maintains that the road shown by the drawings is too curved to correspond with Poissant's testimony. The officer testified that the diagrams gave a fair representation of 'the way the road lay with reference to being straight.' For reasons stated above in connection with the photographs, the diagrams were sufficiently verified and no abuse of discretion appears. Since the jury had the benefit of both pictures and a view of the scene of the accident, the diagrams, although they lacked the exactness of an engineer's blueprint, (which they did not purport to be) could hardly mislead the jury as claimed.
It was brought out in the State's examination of Dean Gardner, Newport police officer, that the respondent was taken to the police station following the accident. As the respondent went into the police station, Gardner stood near by. He was asked if he smelled anything on the respondent's breath. The respondent's counsel objected to the question. A lengthy discussion at the bench followed, the State claiming that it had a right to show that the respondent was under the influence of intoxicating liquor 'as bearing upon his operation of this vehicle.' Counsel for the respondent first contended that since the respondent was not charged in the complaint with operating a motor vehicle in a careless and negligent manner by reason of being under the influence of intoxicating liquor, the evidence was inadmissible. This position on the part of the respondent was not maintained, however. In the end he stated, 'If the state's attorney claims and says that he will connect up such evidence with a showing that the respondent was under the influence so that his actions could have been governed in any way by it, with that statement from the state's attorney, I will withdraw my objections.' The state's attorney responded, 'I intend to connect as stated.' The witness testified he smelled intoxicating liquor on the respondent's breath and the trial proceeded.
At no time thereafter was the claim made by the respondent that the State had failed to connect the testimony as stated. No motion to strike the testimony was made. The respondent having withdrawn his objection, it was his duty to call to the court's attention any claimed deficiency in the matter of connecting testimony. Having failed to do this, he has no exception available to him in this Court. Scott v. Bradford National Bank, 107 Vt. 226, 231, 179 A. 149.
Following police officer Gardner, the State called Dr. C. D. Rublee as a witness. Having been duly qualified and having told of examining the respondent at the jail at about 1:30 the night of the accident, he testified, without objection on the part of the respondent, that the respondent at that time was in his opinion slightly under the influence of intoxicating liquor. The doctor testified that the respondent admitted to him that he had drunk one bottle of beer on the road at about midnight after leaving Derby for Newport, which would be shortly before the accident. The doctor further testified that the respondent did not claim to be ill nor hurt. During the examination the doctor observed that the respondent's balance was off, finger-to-nose test uncertain, and that he slurred his words in speaking. Thereafter the state's attorney asked the following question: 'Doctor, I ask you, if, based upon your study of the effect of alcohol on the human system, your practical experience which you have testified to, the observations which you made of this man, and your conclusions testified to, whether or not the slightly under the influence which you found, would have affected him in the control of an automobile at about 12 o'clock midnight that same day?' Under the respondent's objection the doctor answered, 'I think it would affect his control of a car.' The doctor further testified in effect under objection, that the mental process and reactions would have been affected.
The respondent claims that by admitting this testimony the court allowed the doctor to...
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