State v. Hermengilde Lizotte

• Citation: 197 A. 396,109 Vt. 378
• Parties: STATE v. HERMENGILDE LIZOTTE
• Decision Date: 25 February 1938
• Court: United States State Supreme Court of Vermont

197 A. 396

109 Vt. 378

STATE v. HERMENGILDE LIZOTTE

Supreme Court of Vermont

February 25, 1938

February Term, 1938.

Prosecution for Maliciously Burning Building---Admissibility of Threats of Bodily Harm---Of Threat to Do Act Charged---Of Threats to Attach Property---Unresponsive Answer Not Prejudicial---Effect of Lapse of Time on Admissibility of Threats---Evidence to Show Motive in Another---Showing Motive Alone Insufficient---Presence at Scene Insufficient to Admit Evidence of Motive---Burning Insufficient to Establish Corpus Delicti---Evidence Held Sufficient Therefor---Held Sufficient lo Connect Respondent with Burning---Infirmities of Evidence Sufficiently Charged---Limitations and Functions of Presumption---Rebutting Presumption---Rule Applies to Presumption of Innocence---Proof Beyond Reasonable Doubt Required---Function of Presumption Same in Civil and Criminal Cases---Presumption of Innocence Not for Consideration by Jury---Burden of Proof Determined by Court---Function of Court and Jury as to Sufficiency of Evidence---Requests to Charge on Presumption of Innocence Properly Denied---Charge as Given Not Prejudicial.

1. Threats of bodily harm, made by respondent, and directed toward one of the owners of the property burned, are admissible in prosecution for arson as tending to show malice and ill will.

2. Evidence of threat to do particular act charged in prosecution for arson is admissible.

3. In prosecution under P. L. 8421 for maliciously burning barn belonging to daughter and son-in-law with whom respondent lived, evidence of threats made by him to seize or attach cattle and hay of son-in-law for claimed debt was admissible as showing ill will where evidence was undisputed that respondent was to receive no wages but only lodging, etc for his services and no claim was made that agreed consideration had not been furnished.

4. In such prosecution, though testimony as to statement of respondent concerning proposed attachment of cattle belonging to son-in-law, interpolated by witness in response to question concerning threat by respondent to burn building was unresponsive, where there was no request to strike it out, where court treated it as under exception and where it was in fact admissible, no prejudice to respondent appeared.

5. In such prosecution, fact that threats were made by respondent from a few months to three years before fire did not make them inadmissible, since question of remoteness called for exercise of trial court's discretion and no abuse thereof was made to appear.

6. In such prosecution, exclusion of evidence offered by respondent that buildings burned were insured in favor of owners and that there was mortgage on farm, as tending to show they had motive to burn buildings, was without error, where there was no claim that premises were overinsured or that owners were pressed for money, and there was nothing in record to connect them with the burning.

7. While it is always competent for a respondent to give evidence tending to show that another committed crime of which he is charged, it is not enough merely to show that another had motive to commit it.

8. In prosecution for maliciously burning barn, mere fact that owners of barn were at their house nearby until about an hour before fire was discovered was not enough standing alone, to make admissible evidence offered to show they had motive for setting fire, since it served at best only to cast bare suspicion and was accompanied by no evidence of an overt act.

9. Mere fact of burning is not sufficient to establish corpus delicti in prosecution for maliciously burning building, for if nothing more appears it will be presumed that fire was result of accident or providential cause, rather than result of criminal design, but incendiarism may be proved by circumstantial evidence.

10. In such prosecution, that there were three simultaneous fires, two inside house and one in barn, that direction of wind was not from barn toward house, that windows in house were closed, and that there was no fire in stove, were sufficient to establish corpus delicti, since they would permit jury to find such three fires were not result of accidental or natural causes, but were willful act of some person.

11. In such prosecution, evidence that respondent was only person on premises when fire was discovered, that he had exhibited ill will toward his daughter and son-in-law, who owned building burned, and that after removing his belongings to safe place he made no effort to save any other property, made jury question as to his guilt as against motion for directed verdict on ground there was no evidence to connect him with burning.

12. Exception to failure of court to call attention in charge to inherent infirmities of evidence concerning conversations which took place several years before trial was unavailing where these infirmities were stated in taking exception to be that witnesses might not have correctly understood, correctly remembered, or correctly repeated what was said and where court charged in substance what was so stated.

13. Disputable presumption, of itself alone, contributes no evidence and has no probative quality, its function being to shift burden of going forward with evidence on presumed fact to party against whom it operates.

14. Disputable presumption does not need to be overcome by evidence, but it is sufficient that enough rebutting evidence is admitted to make question for jury on point involved, and when this is done, the presumption disappears.

15. Rule that presumption has no probative quality applies to all disputable presumptions, including presumption of innocence.

16. In prosecution for maliciously burning building, degree of persuasion required of jury in order to find respondent guilty was proof beyond a reasonable doubt.

17. Function of presumption is same in both civil and criminal cases.

18. Since presumption of innocence has no probative value, it is not for consideration by jury, for they are concerned only with evidence presented to them, weight of which is for them to decide and upon which alone they must determine question of guilt of respondent in criminal case.

19. It is for court to say where burden of proof lies and when that burden, in sense of going forward with evidence, shifts from one party to the other.

20. If there is no evidence fairly and reasonably tending to show guilt, presumption of innocence requires court to take case from jury, because prosecution has failed to sustain burden of proof; but if there is such evidence, it is for jury to say whether it is of sufficient strength to exclude reasonable doubt of guilt.

21. Where jury in criminal prosecution was charged that respondent was entitled to acquittal unless his guilt was proved beyond reasonable doubt, there was no error in failure of court to charge as requested that respondent was presumed to be innocent until, on the evidence, jury was convinced beyond reasonable doubt that he was guilty, or that presumption of innocence availed and protected him and required verdict of not guilty unless and until jury was convinced beyond reasonable doubt that he was guilty.

22. Respondent in criminal prosecution was not prejudiced by charge to effect that he was presumed to be innocent, that presumption was not evidence but simply took place of evidence at start of case and when State introduced evidence which fairly and reasonably tended to show him to be guilty, presumption had served its purpose and was out of case, though such charge was inappropriate, since presumption was for court to consider in ruling whether sufficient evidence had been introduced to make jury question.

INFORMATION under P. L. 8421 for maliciously burning barn. Plea, not guilty. Trial by jury at the September Term, 1937, Orleans County, Adams, J., presiding. Verdict of guilty and judgment and sentence thereon. The respondent excepted. The opinion states the case.

Judgment affirmed.

J. W. Redmond for the respondent.

Alban J. Parker, Deputy Attorney General, and Maxwell L. Baton, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

MOULTON

The respondent has been found guilty of the crime of maliciously burning the barn of George Tetreault, under P. L. 8421, and has brought the cause here on exceptions.

The evidence for the State tended to show the following facts: George Tetreault and Rose, his wife, owned a farm as tenants by the entirety. The barn, ninety by thirty-six feet, containing ninety-five tons of hay, stood on the easterly side of the highway, and the dwelling house was situated on the westerly side, southerly of the barn, and 126 feet distant from it at the nearest point. The family consisted of George and Rose Tetreault, their two children and Rose's father, the respondent, who was seventy-two years old, and, it would seem, of uncertain temper, and who worked for his son-in-law for his board, lodging, clothes and tobacco, but no wages. The children slept in a room in the northeast corner of the house, on the ground floor; the Tetreaults occupied the room on the southwest corner on the ground floor; the respondent's room was directly above the children's.

At 9:20 on Sunday morning, August 29, 1937, George Tetreault took his wife and children to mass, and the respondent was left alone in the house. Just before starting out, George received a message from his brother saying that the latter's wife was ill, and asking him to get some help. Accordingly, George took his wife and children to the church, went on to his mother's, and took her to his brother's house. He passed by his own place on the way, some twenty to twenty-five minutes after he had left it, and noticed nothing...