State v. John Turley
| Decision Date | 13 October 1913 |
| Citation | 88 A. 562,87 Vt. 163 |
| Parties | STATE v. JOHN TURLEY |
| Court | Vermont Supreme Court |
November Term, 1912.
INDICTMENT for murder. Plea, not guilty. Trial by jury at the September Term, 1911, Washington County, Taylor, J presiding. Verdict, guilty of murder in the second degree and judgment thereon. The respondent excepted. The opinion states the case.
Judgment and sentence reversed and cause remanded.
Richard A. Hoar and John H. Senter for the respondent.
Present: ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.
Charged with the murder of John McAuley, who was clubbed to death at Websterville on the night of July 11, 1911, John Turley, the respondent, was convicted of murder in the second degree.
On voir dire, his counsel asked several of the jurors if they knew that the respondent was entitled to a presumption of innocence which was to be weighed in his favor, and if they knew that, in order to justify a conviction, they must be convinced of his guilt beyond a reasonable doubt. These questions were severally objected to and excluded, and the respondent excepted.
The nature and extent of the inquiries which may be made on the preliminary examination of jurymen is largely within the discretion of the trial court. Fowlie's Admx. v. McDonald, Cutler & Co., 85 Vt. 438, 82 A. 677. In the nature of things they cannot be governed by fixed rules. They are not to be confined to matters directly affecting the legal qualifications of the juror, and, ordinarily, considerable liberality is and should be indulged,--to the end that the respondent may possess himself of sufficient information regarding the jurors to guide him properly in the exercise of his right of challenge. Yet this examination is to be conducted under the supervision of the court, and the exercise of its discretion therein will not be revised, except in cases of its abuse. Accordingly, it was held in State v. Flint, 60 Vt. 304, 14 A. 178, that it was not error to allow the jurors to be asked whether they would disregard the testimony of an accomplice, and in State v. Smith, 72 Vt. 366, 48 A. 647, that it was not error to refuse to allow the jurors to be asked if they were clients of a lawyer who was to be a material witness. Jurors are not required or expected to be learned in the law. S. A. & A. P. Ry. Co. v. Belt, (Tex.) 59 S.W. 607; Brown v. Florida, 40 Fla. 459, 25 So. 63; People v. Conklin, 175 N.Y. 333, 67 N.E. 624. In the case last cited it was held that it was proper to refuse to allow the jurors to be asked if they knew that in law the accused in a criminal case was presumed to be innocent until proved guilty, and that the proof in a criminal case must be stronger than in a civil case. And in Ryan v. State, 115 Wis. 488, 92 N.W. 271, it was held proper to exclude the question whether the juror knew that the defendant in a criminal case was entitled to the benefit of the presumption of innocence.
Nor was there error in refusing to permit the respondent to ask a juror what his verdict would be in case the indictment was read, but no evidence put in. This, too, is covered by the rule given; and it is held that it was not error to refuse to allow jurors to be asked how they would act or decide in certain contingencies or upon a certain state of evidence. Woolen v. Wire, (Ind.) 11 N.E. 236; Com. v. Van Horn, (Pa.) 41 A. 469; State v. Cross, (Conn.) 46 A. 148; State v. Huffman, (Oh.) 99 N.E. 295; Ryan v. State, supra.
Robert O'Harin was a witness for the State. He was at the Staples house, as was the respondent, on the night of the homicide, and he testified that he had been there once before. Subject to exception, he was allowed to state that the respondent was there on that former occasion. This was admitted under the claim of the State that the respondent was "paying attention" to Rebecca Staples, who lived there, and that his jealousy of McAuley was a motive for the crime. It is argued that no evidence was supplied showing any relations between the respondent and Rebecca, or between McAuley and Rebecca; and none of jealousy of McAuley on the respondent's part; and that for these reasons the testimony was inadmissible. It may be admitted that the mere fact that the respondent was at the Staples house on a former occasion was of no consequence. It was only important as it bore upon his relations with or state of mind toward the girl. But it cannot be said that this evidence stood entirely alone, or that this claim of the State was wholly unsupported. There was evidence that the respondent had been to see Rebecca several times that summer; that he had walked home with her from church in the evening; that he was inquiring of her concerning McAuley's visits in a way to bring from her a denial that he was coming to the house on her account; that he claimed that she was "his girl"; and that both he and McAuley claimed that they were going to marry her. Not enough, it must be admitted, to make a case of very ardent wooing, but enough to go to the jury to be weighed for what it was worth.
Luigi Germani, another witness for the state, testified that two men were down by a dump in Websterville on the night of the homicide selling beer, and that these men left Websterville on the Saturday following. In cross-examination it appeared that some, at least, of the witness' information regarding the departure of these men was hearsay. The respondent then asked that all the witness had said on that subject be stricken out. But the court declined, saying that the witness had testified "that they were there in the morning, and when he came at noon they were gone." To which counsel for the respondent replied, "Yes, but I am covering that whole period by what somebody told him; I ask to have that stricken out. * * *" It appears from this statement of the court, assented to by the respondent, that there was in the witness' testimony a basis for personal knowledge of the fact of the departure of the men, independent and apart from the information received from others. Of course so much hearsay as the cross-examiner brought out was properly in the case. Davis v. Streeter, 75 Vt. 214, 54 A. 185; State v. Jackson, 79 Vt. 504, 65 A. 657, L.R.A. (N. S.) 1245. Subsequently, the motion to strike out was so modified as to cover only such of the witness' direct examination as appeared from the cross-examination to be hearsay; but the admission of what the witness' testimony disclosed, as stated above, was not retracted or modified. The statement that these men left on Saturday is the only thing in the witness' direct-examination of which the respondent now complains; but in view of the concession, it cannot be said that this statement was wholly based on hearsay, and it was not error to refuse to strike it out. Moreover, it is quite unapparent how this fact could, by any possibility, harm the respondent, and he does not here claim or suggest that he was prejudiced by it.
Alphonse Primavera, himself under indictment for this very crime, was a witness for the state and testified fully. He was a neighbor of the Staples' and was at their house that night when Turley, McAuley, Rebecca Staples and others were present. They were all sitting on the piazza, which was about eleven feet long and four feet wide,--Turley and the girl being near each other. The witness in detailing the conversation which he had with McAuley and Rebecca, testified that McAuley said he was going "to marry her, too"; that Jack, evidently meaning the respondent, said that he was going to get married a week from the next Sunday; that when the witness asked him to whom, he replied, "Don't you know she is my girl? " the witness testified that he replied that he did not, but that in fact he did know it, for he had told him so before; the witness then went on to state that he told them if they got married he would buy a barrel of beer and treat everybody; and that McAuley then said, "Alphonse, I guess you have got to buy a barrel of beer, for I am going to get married to that girl." All these references were to Rebecca Staples. The only objection interposed by the respondent to this conversation was that there was "no evidence that Turley heard this talk."
This testimony was not admitted for the usual purpose of establishing an admission, but to sustain the state's claim that Turley was hostile to McAuley on account of jealousy. Some of this conversation, at least, must have been heard by Turley, for he joined in it. As for the rest, it is enough that he was in a position to have heard it, and the circumstances were such that an inference could reasonably be drawn therefrom that he did in fact hear it. Whether he did hear it or not, was, of course, for the jury. State v. Rosa, (N. J.) 62 A. 695.
During the cross-examination of Primavera, he was asked if he had talked the case over with his counsel and the state's attorney; before he answered, the Attorney General asked the purpose of the inquiry. In explaining, the respondent's counsel said, in effect, that it was apparent from the examination that the state's attorney knew what the witness was going to testify to, and that there must be some arrangement between them. When this explanation was made the Attorney General made no objection, but said he only wanted to know if it was for the sake of showing that there was some inducement. To which counsel replied, "It was for that very reason." The witness went on to state that he had talked over the case with the state's attorney and that it was on the morning of that day; that he then told the story as he had related it on the stand, but that there was no promise or agreement between him and the state's attorney. In re-direct examination a paper of three sheets, containing a statement...
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