State v. John C. Winters

• Decision Date: 22 March 1929
• Parties: STATE v. JOHN C. WINTERS
• Court: Vermont Supreme Court

145 A. 413

102 Vt. 36

STATE v. JOHN C. WINTERS

Supreme Court of Vermont

March 22, 1929

February Term, 1929.

Criminal Law---Homicide---Opinion Evidence by Lay Witness---Waiver of Exceptions---Motive---Demonstrative Evidence---Admissibility of Evidence of Attempt To Commit Another Crime on Question of Motive---Positive Identification of Respondent by Witness Not Opinion Evidence---Exception Limited to Ground Stated Below---Sufficiency of Evidence To Indicate Motive and Intent To Commit Rape---Purpose of "Offer" of Evidence---Sufficiency of Offer as to Opportunity for Respondent To Get Blood Stains on Clothing Prior to Homicide.

1. In prosecution for murder, which State's evidence tended to show was done while committing or attempting to commit rape held that it was not error to permit lay witness, who had testified to certain marks on wall at foot of bed, or on sheet on each side of body near the foot, and described them to give his opinion that they were made by feet, appearances called for by question being incapable of exact and minute description.

2. Exceptions to admission of evidence, not briefed, are waived.

3. In prosecution for murder, which State's evidence tended to show was done while committing or attempting to commit rape evidence of respondent's statements that he would like to have sexual intercourse with deceased, and that he had said and done things of the foulest and most detestable character, when she was passing through the room where he worked, indicating a lustful desire on his part toward her, and of statements of respondent made the evening before the murder and a few hours before its commission as to his having offered to take another woman out and spend a considerable sum of money with her in a "good time," held properly received on question of motive, as throwing light on the state of his mind and subsequent conduct, and as tending to show that his mind was then fixed on gratifying a lustful purpose had by him.

4. In prosecution for murder, whatever tends to show respondent's feeling toward person killed is admissible.

5. In prosecution for murder, permitting sheriff, who went to scene of murder before anything was moved and took charge of bed bedding, and other articles therein, and had since had them in custody, to arrange them in court room in substantially relative position they were in when witness first visited scene, held without error, such reproduction, in connection with witness' testimony concerning material facts of his own observation and knowledge being demonstrative evidence tending to show motive prompting commission of crime and way it was committed, and admission of such demonstrative evidence being within court's discretion and not reversible in absence of abuse.

6. In arranging in courtroom, before jury, bed, bedding, and other articles, taken by sheriff from room where murder was committed and since kept in his custody, admissibility of demonstration held not to depend upon exact reproduction of conditions as they were in room where crime was committed, it being sufficient if there is substantial accuracy with reference to reproducing relative evidentiary conditions.

7. In arranging in courtroom before jury, bed, bedding, and other articles taken by sheriff from room where murder was committed and since kept in his custody, reproduction need not include specifically all contents of room, however immaterial, small, or insignificant as evidence they may be, and without regard to their several locations in room relatively or otherwise.

8. In prosecution for murder, while it is not necessary for State to establish motive, evidence tending to show motive is admissible and particularly important where prosecution is based entirely upon circumstantial evidence, since motive is an inducement, or that which leads or tempts the mind to indulge the criminal act.

9. In prosecution for murder, which State's evidence tended to show was done while committing or attempting to commit rape, evidence of respondent having assaulted and attempted to commit rape upon another woman shortly before the crime under prosecution was committed, together with respondent's statements and actions while committing such assault, held admissible to show his identity, motive, and intent in connection with crime for which he was being prosecuted.

10. Where witness testifying as to an assault upon her had been acquainted with her assailant for a number of years, and at time of assault recognized his face, although she could not then associate his name therewith, but did so the next morning and was positive in her identification of person assaulting her, such testimony as to identification was not opinion merely, but actual knowledge of witness.

11. Where ground of motion was limited to particular matter by moving party, in response to court's question as to its meaning, review of exception to overruling motion will be confined within same limits.

12. In prosecution for murder, evidence offered and received to show motive and intent to commit rape, held properly admitted over objection that it was no stronger in support of such motive and intent, than it was to commit robbery, since all evidence legitimately bearing on question reasonably indicated that intent of robbery did not exist, making inapplicable rule that where a fact is susceptible of two interpretations, one should be given which is more favorable to respondent.

13. The purpose of an offer of evidence is to apprise trial court of nature of evidence proposed to be introduced, in order that court may know precise question to be passed on.

14. In prosecution for murder, where State had introduced bloodstained trousers and overcoat of respondent, and latter had testified that during such ownership, and some months prior to date of offense charged, he had lost a finger on his left hand, exclusion of respondent's offer to show, that at time he had cut finger off and when he went to have it dressed, he had worn said clothing, court having made inquiry as to whether respondent's counsel offered to show that respondent got blood on his trousers and coat at that time, to which counsel replied, "No, we can't; but we can show his opportunity to have done it," held error, since evidence of respondent's opportunity to have gotten blood spots on his clothing when finger was being dressed was clearly admissible, and counsel was warranted in understanding that whole line of evidence was excluded, unless he could show that blood was actually gotten on clothing at time specified, or that his offer was inadequate only in that it did not cover that fact, rendering further offer unnecessary.

INDICTMENT for murder in the first degree. Plea, not guilty. Trial by jury at the December Term, 1926, Windsor County, Thompson, J., presiding. Verdict, guilty, and judgment upon verdict, but respondent not sentenced. The respondent excepted. The opinion states the case. Exceptions sustained, judgment and verdict set aside and new trial granted, and cause remanded.

Exceptions sustained by a majority of the court, judgment and verdict set aside and a new trial granted. Cause remanded.

Fred G. Bicknell, Herbert G. Tupper, and Clarence S. Darrow (of Chicago, Ill.) for the respondent.

J. Ward Carver, Attorney General, Robert R. Twitchell, State's attorney, and Raymond Trainor, special prosecutor, for the State.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

WATSON

This is a prosecution on indictment, charging the respondent, John C. Winters, with the murder of Cecelia Gullivan at Windsor, this State, on November 7, 1926. Much evidence was introduced by the prosecution, and also in defense. The respondent took the witness stand in his own behalf, and testified at great length both in chief and in cross-examination. The jury returned a verdict of guilty of murder in the first degree. The official transcript, duly certified, and the exhibits in the case, are referred to in the bill of exceptions as a part thereof, and made controlling. The exceptions shown by the bill are numbered, and those relied upon by respondent in argument, will be referred to by number. The prosecution was based entirely upon circumstantial evidence.

The evidence on the part of the State tended to show, among other things, the following facts:

That on Monday morning, November 8, 1926, the dead body of Cecelia Gullivan was found in her bed on the sleeping porch at her home in the village of Windsor; that her head had been struck with some cutting instrument; that the appearance of the head indicated that two different implements were used, one on the neck and face, and the other upon the scalp; that there were many cuts upon the head which were made with an edged instrument bevelled on one side; that the body was found lying with the fact toward the left as it lay in the bed wholly undressed, except that it had on a night gown; that there was a large quantity of blood upon the bed and sheets; that in several places near the foot of the bed, below the body, were found sand, gravel, coal ashes, cinders and particles of fine coal or dust, and near where these materials were found were also two scuffs of dirt, one on each side of the body, on the lower sheet itself, which were apparently made by person's feet; that the bed was up tight against the south wall of the sleeping porch, and on that wall about four inches from the top of mattress were dark-colored marks which appeared like foot marks of a shoe; that there were also found in the bed burdock burrs and pieces of burdock burrs (commonly hereinafter called "burdocks"); that the bed pillow was gone; that nothing in the room was disturbed except the bed; that the covering on the bed consisted of two...