State v. Joseph Lawler

• Decision Date: 04 November 1931
• Citation: 156 A. 908,104 Vt. 50
• Parties: STATE v. JOSEPH LAWLER
• Court: Vermont Supreme Court

156 A. 908

104 Vt. 50

STATE v. JOSEPH LAWLER

Supreme Court of Vermont

November 4, 1931

October Term, 1931.

Criminal Law---Hypothetical Question---Necessity of Offer of Evidence Excluded on Direct Examination, To Make Available Exception.

1. Hypothetical question as to whether condition of respondent charged with operation of automobile on public highway while intoxicated, would injuriously affect him in certain respects, which assumed facts that had not appeared in evidence and omitted vital fact that had so appeared, held properly excluded.

2. Respondent's exception to affirmative answer of court as to whether court would still rule hypothetical question immaterial if restricted to evidence as court understood it held without merit, question not being tantamount to offer of what he expected to show, and neither question nor record showing what court understood evidence to be.

3. Where respondent, charged with operation of automobile while intoxicated, upon exclusion of question on direct examination as to whether certain circumstance was reason for his hurrying to certain town, made no offer to show what answer to question would have been, if allowed, or its materiality if answered in affirmative, held that exception to its exclusion presented nothing for review.

4. Exclusion as immaterial of material evidence tending to qualify expert witness, held not to constitute harmful error where court might have considered witness qualified from what had already appeared in evidence, and respondent was not precluded by exclusion from showing actual knowledge, if any, which witness had of subject-matter.

INFORMATION for operation of an automobile on a public highway when under the influence of intoxicating liquor. Plea, not guilty. Trial by jury in Barre city court, H. William Scott, Municipal Judge, presiding. Verdict of guilty and judgment and sentence thereon. The respondent excepted. The opinion states the case.

Judgment that there is no error in the proceedings below and that the respondent takes nothing by his exceptions. Let execution be done.

John J. Finn for the respondent.

C. O. Granai for the State.

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

OPINION

SLACK

The respondent was convicted in the Barre city court of operating an automobile on a public highway in that city when under the influence of intoxicating liquor, and brings the case here on exceptions.

It appears from the State's evidence that the respondent was arrested between 7.30 and 8.00 o'clock in the evening of July 21, 1930; that he was then sitting in his automobile which had two flat tires and had been driven over the street curb on to an adjacent lawn; that he was in a maudlin condition, rambling, his speech thick and incoherent; that he staggered when he tried to walk, and was assisted from his automobile to that of the officer who arrested him, and that his breath bore the smell of intoxicating liquor.

After the respondent had introduced evidence to show that he had the gasoline tank on his automobile fixed at the shop of one Paquet in Barre the afternoon of the day in question; that he took the tank off the automobile and helped Paquet and one Smith fix it; that they worked on it between three and four hours and during some of the time Paquet and Smith used an acetylene torch about the work; that the respondent wore neither mask nor goggles while assisting them; that he put the tank back on to the automobile; that in doing this he was under the automobile for a time during a part of which the motor was running, and that he left Paquet's shop between 6.30 and 7.00 o'clock, he called as a witness Dr McFarland, who was asked: "Q. Doctor, assuming that a man about 54, this man over here, had a gasoline tank that was out of repair; that he hustled all day to find a gasoline tank; had called at a repair station and had it welded; had a blacksmith...