State v. John Coomer, Jr

• Decision Date: 04 January 1933
• Citation: 163 A. 585,105 Vt. 175
• Parties: STATE v. JOHN COOMER, JR
• Court: Vermont Supreme Court

163 A. 585

105 Vt. 175

STATE v. JOHN COOMER, JR

Supreme Court of Vermont

January 4, 1933

October Term, 1932.

Criminal Law---Jury Question---Instruction to Jury---Presumption of Innocence as Evidence in Respondent's Favor---Conviction Limited to Theory on Which Case Tried---Election of Offense on Which State Relies.

1. That there is some conflict in testimony of witness does not wholly deprive evidence of probative value, but weight is for jury.

2. In prosecution for driving motor vehicle while under influence of intoxicating liquor, whether respondent or another was driver of car at time in question, held question for jury.

3. Failure of trial court to instruct jury that presumption of innocence is itself piece of evidence to be weighed in respondent's favor on all material questions in determining question of respondent's guilt, held error.

4. Respondent is entitled to know before he makes his defense what specific acts of his the State relies upon as constituting offense charged.

5. Conviction cannot be sustained upon different theory than that on which case is tried.

6. Where one offense is charged, and evidence shows separate and distinct transactions, and either of them would support charge in complaint, State is required to elect upon which it will rely for conviction, time for making of such election being within discretion of trial court, if respondent is given opportunity to make his defense.

7. No election by State is required where single criminal act is involved and proof shows its commission in different modes and by different means.

8. No election is required by State where separate acts are shown by evidence to be so related as to constitute but one entire transaction, or one offense, nor where offense is continuous in its nature.

9. In prosecution for driving motor vehicle while under influence of intoxicating liquor, State, having particularized specific offense as charged in complaint, is deemed to have made election, and court should have confined evidence and directed his instructions to that particular offense.

INFORMATION by State's attorney against respondent charging him with operating motor vehicle while under influence of intoxicating liquor. Plea, not guilty. Trial by jury in Orleans County municipal court, F. C. Williams Municipal Judge. Verdict of guilty, judgment thereon, and sentence. The respondent excepted. The opinion states the case. Judgment reversed, conviction and sentence set aside and cause remanded.

Judgment reversed, conviction and sentence set aside, and cause remanded.

Lee E. Emerson for the respondent.

Raymond C. Miles, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

GRAHAM

The respondent was convicted in the Orleans County municipal court of driving a motor vehicle while under the influence of intoxicating liquor. The respondent made a motion for a directed verdict at the close of the State's case, which was renewed at the close of all the evidence, contending that there is no evidence supporting the essential elements of the crime charged to justify the submission of the case to the jury. His exception to the overruling of this motion is first considered.

The evidence most favorable to the State tended to show that the respondent on January 11, 1932, transported in his automobile two people from Craftsbury to the Cleasby hospital in Orleans village. From the hospital the respondent, while riding alone, drove the car to the home of Abner E. Green in the same village. The respondent remained at Green's house several hours and thereafter he and Green went in the car to the business section of the village about one-fourth mile away. The car was stopped and parked in front of the bank block and across the street from the Hartshorn barber shop. The respondent at that time was under the influence of intoxicating liquor.

A. N. Hartshorn, a witness called by the State, testified that he stood in his barber shop, looking through the window toward the street, and that he saw the car when it was driven to the bank block and stopped; that the driver of the car got out from the driver's seat, and came directly into the witness' shop; and that the respondent was the driver of the car when it stopped in front of the bank. There was some conflict in the testimony of this witness, but that does not wholly deprive his evidence of probative value. Its weight was for the jury to decide. A short time after the respondent left the barber shop he was arrested. The officer who made the arrest said to him, "You ought to know better than to have driven this car while under the influence of intoxicating liquor," and the respondent replied, "I am sorry. I have done wrong." The respondent's evidence tended to show that Green, and not the respondent, was driving the car when it stopped in front of the bank, but the evidence clearly made an issue for the jury, and the overruling of the motion was without error.

The respondent excepted to the failure of the court to charge that "the presumption of innocence is itself a piece of evidence to be weighed in respondent's favor on all material questions in the case in determining the question of respondent's guilt." This exception must be sustained. That the respondent was entitled to such an instruction has long been the settled law of this State. State v. Dugee, 101 Vt. 491, 495, 144 A. 689; State v. Hall, 96 Vt. 379, 381, 119 A. 884; State v. Clark, 83 Vt. 305, 307, 75 A. 534, Ann. Cas. 1912A, 261; State v. Marston, 82 Vt. 250, 251, 72 A. 1075.

The complaint is in one count, and charges that the respondent "at Barton in the County of Orleans, on the 11th day of January Am. Dec. 1932 did operate a motor vehicle on the public highway while under the influence of intoxicating liquor." The State, after introducing evidence tending to show that the respondent while under the influence of intoxicating liquor drove his automobile at about four or four-thirty o'clock in the afternoon of the day in question from the residence of Abner E. Green to the bank block in...