State v. John Ashey
| Decision Date | 03 April 1913 |
| Citation | 86 A. 308,86 Vt. 479 |
| Parties | STATE v. JOHN ASHEY |
| Court | Vermont Supreme Court |
January Term, 1913.
INFORMATION for petit larceny. Plea, not guilty. Trial by jury at the September Term, 1912, Chittenden County, Taylor J., presiding. Verdict, guilty; and judgment and sentence thereon. The respondent excepted; his exceptions were allowed, and execution stayed. The opinion states the case.
No error; and respondent not appearing, bail forfeited, and case remanded to county court for further proceedings.
Sherman R. Moulton for the respondent.
Theodore E. Hopkins, State's Attorney, for the State.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
The respondent is charged with having stolen two bridles, which the evidence shows he disposed of to one Bailey, representing that he had procured them from some one at Fort Ethan Allen in exchange for intoxicating liquor. It appeared that the respondent had been seen on the premises of the owner of the bridles at some time previous to the transaction with Bailey, but there was no evidence of his taking the bridles from their owner. No evidence was introduced by the respondent.
The court referred in its charge to the evidence of Bailey as to his purchase of the bridles and the representations made by the respondent, and instructed the jury that if the respondent took the bridles to Bailey, representing how he came into the possession of them, they would be entitled to find as an inference from those facts unexplained, that he obtained them by a felonious taking. The failure to make the falsity of the representation essential to the inference is the only error claimed.
But the instruction above stated did not stand alone. The court proceeded immediately, without any intervening reference to other matters, to say that when property claimed to have been stolen is found in one's possession it is incumbent on him to furnish some explanation as to how he came by it, if he would escape the inference to be drawn from the fact of possession; and that it was for the jury to say whether the respondent had given a satisfactory explanation of the matter, or such an explanation as raised in their minds a reasonable doubt regarding it. The question submitted as to the satisfactory character of the explanation afforded, could refer to nothing but what the jury might think of its probable or possible truth or falsity.
A motion to quash the information is orally made on hearing, on the ground that the statute under which the respondent was convicted has been repealed. That statute--P. S. 5756--permitted an imprisonment of not more than three months or the imposition of a fine of not more than fifty dollars. By an act which was approved December 17, 1912, and took effect from its passage, and is without an excepting clause, this section was so amended as to permit an imprisonment of six months, or a fine of three hundred dollars, or both. The act makes no other change.
The court below rendered judgment on the verdict and sentenced the respondent to three months imprisonment. The allowance of exceptions did not vacate the judgment and sentence; and the respondent, but for an exercise of the court's discretion, would have been...
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