State v. Haskins, 1130

• Decision Date: 05 November 1957
• Docket Number: No. 1130,1130
• Citation: 139 A.2d 827,120 Vt. 288
• Parties: STATE of Vermont v. Carroll H. HASKINS.
• Court: Vermont Supreme Court

Page 827

139 A.2d 827

120 Vt. 288

STATE of Vermont v. Carroll H. HASKINS.

No. 1130.

Supreme Court of Vermont.

Nov. 5, 1957.

On Motion for Reargument March 5, 1958.

Ernest W. Gibson, III, State's Attorney, Brattleboro, for plaintiff.

Gannett & Oakes, Brattleboro, for defendant.

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

ADAMS, Justice.

This is a prosecution for operating an automobile on a public highway while under the influence of intoxicating liquor. It charges a violation of V.S. 47, § 10,287. The case is here on exceptions of the respondent after trial by jury resulting in a verdict of guilty with judgment and sentence thereon.

The first exception briefed is to the denial of the respondent's motion for a directed verdict made at the close of the State's case and renewed at the close of all the evidence.

Viewed most favorably to the state, as it must be in considering this motion, State v. Bromley, 117 Vt. 228, 229, 88 A.2d 833, the evidence tended to show the following facts: On Tuesday, October 9, 1956, shortly after 5 P.M., Clarence Miles saw a Ford auto parked on the road from Newfane to South Wardsboro about 1/4 of a mile beyond a covered bridge. It was on a curve on an upgrade on the right hand side of the road. There was a man in the car. About 1/4 of an hour later when Miles returned and was travelling in the opposite direction, the car was in the same place. Later when he passed the place again, the car was backed over on the other side of the road below where it was before and at an angle to the road with the rear in the ditch. The wheels were spinning and smoke was pouring from under the car. Miles went home and reported it.

Wilbur Herbert, First Constable of Newfane, received the report by telephone from Miles shortly after 7 P.M. about the car being off the highway. He went to the scene and found the Ford car with the motor running. It was dark and the lights on the car were not on. A man was 'hanging over the wheel' and lying in the front seat. Herbert shook him and he did not arouse but only grunted. Herbert took the keys out of the ignition as the man was in no condition to drive. A garage proprietor in Newfane, Raymond Kent, came at that time. The Ford car was on the left side of the road on the curve. It had apparently slipped back down the hill. Its rear wheels were in the ditch and the front wheels on the road. This was about 7:15. Kent knew the man who was in the front seat and identified him to Herbert as Mr. Haskins of Brattleboro. The motor was not running at that time and Kent turned on the parking lights as Herbert could not find the switch. Herbert by shaking the man was trying to determine if he was asleep or if something else was involved. He talked with Kent and made up his mind that something else was involved and it was a case for the state police. Kent left as there was nothing else he could do. Herbert left about quarter of eight and called the state police. Two troopers came to Herbert's house about 8:30 and procured the keys to the auto.

Mr. Sanderson was driving from Newfane to his home on the South Wardsboro road five or ten minutes after five. He saw a green Ford car on the curve on the right hand side of the road. There was a man in the front seat with his head down, sort of on his chest. Later, about 6:30 when Sanderson came from home to his father-in-law's at Newfane Village, the car was on the same side of the road and Sanderson nearly stopped. The man was still in it with his head bent down and his eyes shut. Sanderson had a little boy with him so decided to go on and not trouble the man. Later that night, when Sanderson returned home, the car was on the left side of the road. Its rear wheels were in the ditch and it was 25 or 30 feet below the place where he had seen it before. It was dark then and he saw nobody around the car or in it.

Two members of the state police, who were on patrol duty that evening, Cook and Patnode, received a call by radio from the Bellows Falls office. It was received at 8:10. They arrived at Herbert's house in Newfane about 8:30, procured the keys to the auto and received information from Herbert about the matter. They drove to the place, parked their auto so that its lights shone on the Ford car. It was partly off the left side of the road with its parking lights on. The respondent, Haskins, was lying on the front seat. When they opened the door, they could smell the odor of alcohol. Patnode spoke to Haskins and shook him. He groaned, muttered and finally straightened up and started sliding out of the car. Patnode told him that they were state police and that he was under arrest for intoxication. His wallet was on the floor where the gear shift comes out and money was acattered over the floor. The troopers asked him to pick up the money and he said 'What money?' and then said 'Leave it there.' When he was out of the car and standing on his feet, he swayed and had a strong odor of alcohol. Cook picked up the money that was on the floor of the car and put it in an envelope. He later counted it and there was $2,317. The troopers told Haskins to come along to their car and he said that he wasn't going to. They took hold of him and he shook himself loose. He was very belligerent and they had to put the handcuffs on him. He was placed in the troopers' car and taken to the police station at Brattleboro.

After arriving there, the troopers attempted to locate a doctor for the purpose of having him examine the respondent. They had difficulty in locating one and finally reached Dr. Carey at the hospital so took the respondent there. This delayed them so Dr. Carey didn't see the respondent until ten o'clock. He told Dr. Carey that he had one big drink of whiskey at Newfane at 7 P.M. There was a strong odor of alcohol on his breath, he was pretty talkative and cocky. His eyes were bloodshot and had poor reaction to light. His walk was fair. He refused to have blood taken for an alcohol blood test. This was after the doctor had explained at some length what the test meant and that if the blood was found to be below .15% alcohol any charge against him would be dropped.

The doctor testified that in his opinion the respondent at the time he examined him was under the influence of alcohol. Both troopers testified that when they saw him at the scene in Newfane and when the doctor examined him, he was under the influence of liquor. In fact, one expressed it as intoxicated when he saw him at Newfane. Both testified that he had improved by the time he was examined by the doctor.

The respondent testified. His testimony was that he stopped at the West Valley Inn in Newfane between 5 and 6 o'clock and had a double drink of whiskey and that he was there from one-half to three-quarters of an hour. He then drove towards South Wardsboro and stopped his car beside the road to make out a check and look at some papers. He then started up the grade and the motor stopped. The battery was down so he could not start the motor. He then backed the car down the grade in an attempt to get it off the road and head it down the grade so that he could start it without the battery. In doing so he backed it into the ditch so he sat there waiting for the battery to build up so he could start the car. He went to sleep and the next thing he knew the state police were waking him up.

The foregoing recapitulation of the evidence shows conclusively that there was evidence fairly and reasonably tending to show the respondent's guilt, or in other words that the jury on the evidence would have been justified in finding the respondent guilty beyond a reasonable doubt. State v. Tatko, 119 Vt. 459, 466, 128 A.2d 663, and cases cited. There was more than mere suspicion and conjecture as claimed by the respondent. The factual situation is different than in State v. Sanford, 118 Vt. 242, 108 A.2d 516, relied upon by the respondent. Here there was direct evidence, coming from the respondent himself in his statement to the doctor that he drank a big drink of whiskey at Newfane at 7 P.M. There was evidence that a short time later, he was seen attempting to operate his car at the place where he was found by the constable in no condition to operate the auto and with the motor running. When the state police arrived shortly after that he was under the influence of intoxicating liquor. In fact, the respondent conceded in oral argument that there was no question but that he operated his car on the highway from where he had a drink to where he was found. The motion for a directed verdict was properly denied.

The next exception briefed is to the action of the court in continuing to hold the trial into the evening over the objection of the respondent. While we agree that the court in some circumstances might conceivably abuse its discretion in that regard, such abuse is never presumed. Mullett v. Milkey, 113 Vt. 42, 45, 29 A.2d 806. The party alleging the abuse of judicial discretion has the burden of showing it. Ricci v. Bove's Executor, 116 Vt. 335, 339, 75 A.2d 682. For these reasons, it was particularly incumbent upon the respondent to so brief this exception as to make the abuse apparent. His brief does not in any may, by page or otherwise, refer us to where we may ascertain the time when the trial started, the evidence or any part of it closed, the objection made, the case submitted to the jury or the verdict returned. We are left to search the record and transcript for all the facts by which the ruling may be tested. This briefing does not comply with Supreme Court Rule 18 and does not merit attention. Croteau v. Allbee, 117 Vt. 332, 335, 91 A.2d 803.

The other exceptions are to the charge of the court. We discuss them as enumerated in the respondent's brief.

A. The court charged the jury, 'Now the respondent has taken the stand and testified. The statute makes him a competent witness, at his request, in his own behalf. The credit to be given ...