State v. Kamuda

• Decision Date: 06 May 1925
• Citation: 129 A. 306
• Parties: STATE v. KAMUDA.
• Court: Vermont Supreme Court

129 A. 306

STATE

v. KAMUDA.

Supreme Court of Vermont. Rutland.

May 6, 1925.

Exceptions from City Court of Rutland; Leo E. Pratt, Judge.

John Kamuda was convicted of selling intoxicating liquor, and brings exceptions. No error.

Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.

Charles E. Novak, State's Atty., of Rutland, for the State.

Dorsey & Kinney, of Rutland, for respondent.

WATSON, C. J. In this case the respondent was charged with selling intoxicating liquor to one Leon Pelkey at the village of Florence in the town of Pittsford, this state, on August 25, 1923, contrary to law. A trial was had by jury in the Rutland city court, resulting in a verdict and judgment of guilty, to which respondent excepted. The jury was drawn on October 2, 1923, six days before the trial. The officer appointed by the court wrote the names of 24 persons, selected by him from the jury list, from the towns as directed by the court, on separate slips of paper, and placed such slips in a proper receptacle. The respondent objected to the manner of drawing the jury, for that when the names were drawn from the box, he either had to exercise a peremptory challenge as to any man drawn or accept him; that he could not exercise such right of challenge intelligently without first having an opportunity to examine any proposed juror; and he objected to being required to exercise such right without having had an opportunity to examine the jurors as drawn, claiming that such right of examination was given by article 10 of chapter 1, and by section 30 of chapter 2, of the Constitution. The position of the respondent in this respect was overruled, to which he excepted. The court then remarked to respondent's counsel: "When the jury is drawn, you will have an opportunity to examine. * * *" The provisions of section 30 pertain, in terms, exclusively to jury trials in the Supreme and county courts, and have no reference to trials in city or municipal courts. By article 10, c. 1, in all prosecutions for criminal offenses a person is entitled to a speedy public trial "by an impartial jury of the county." In this connection it is important to note that a municipal or city court has jurisdiction, throughout the county wherein it is located, to try and finally determine prosecutions for misdemeanors of the character here in question, committed within the county, with no right of appeal from its judgment. G. L. 2565; State v. John, 90 Vt. 150, 96 A. 699. And in prosecutions within the jurisdiction of such court to try and finally determine, the respondent is entitled to a trial by jury of twelve persons; the provisions relating to a jury in such court in civil causes being made to apply. In such prosecutions both the state and the respondent may have six peremptory challenges, and any further number for cause. G. L. 2569.

At the time of drawing the jury, ten drawn were satisfactory to both parties and were accepted as jurors in the case. Six as drawn were peremptorily challenged by the respondent, and three were challenged in like manner by the state. The panel was made complete by the acceptance of the next two men drawn, without objection by either party.

The transcript, which is made controlling, shows that on the day of the trial, and before the jurors were sworn, "The jury having been examined and both sides satisfied," the respondent, by his motion then filed, challenged the array and moved to quash the venire under which the jurors of the panel had been summoned, assigning several grounds, which motion was overruled and exception noted. Suffice it that no challenge to the array had before been taken by the respondent, and such a challenge could not be exercised by him as matter of right after his several challenges to the polls. Vermont Box Co. v. Hanks, 92 Vt. 92, 102 A. 91.

The respondent made no claim that by the ruling of the court the mode of procedure, pointed out by the governing statute, was not required to be followed in point of time for making peremptory challenges. His contention was, in effect, that the statute in this respect was in violation of a right, given him by the Constitution, to examine each juror as drawn, before taking such challenge. But since it appears that the terms of the statute were closely followed in the impaneling of the jury, and since it further appears that finally, on examination of the jurors before they were sworn, the jury was satisfactory to both parties, it cannot be said that the respondent was prejudiced by the interpretation given to the statute in this regard, and the proceedings will not be revised. Quinn v. Halbert, 57 Vt. 178; State v. Ward, 60 Vt. 142, 14 A. 187; State v. Bosworth, 86 Vt. 71, 83 A. 657; State v. Pilver, 91 Vt. 310, 100 A. 674. And it not appearing that the respondent's rights were affected by the statute as interpreted, he cannot avail himself of its asserted invalidity, if it exists. State v. Haskell, 84 Vt. 429, 79 A. 852, 34 L. R. A. (N. S.) 286; State v. Paige, 78 Vt. 286, 62 A. 1017, 6 Ann. Cas. 725; State v. Barr, 78 Vt. 97, 62 A. 43; State v. Scampini, 77 Vt. 92, 59 A. 201.

It appeared that the manual act of selling and delivering the intoxicating liquor to Pelkey on August 25, 1923, charged in the complaint, was done by Mrs. Kamuda, the respondent's wife, in the grocery store and home premises occupied by the Kamudas and their family, at Florence, in Rutland county. They were married in 1915, and at the time of the trial had seven children, the oldest being 7 1/2 years old, and the youngest 7 months. The state claimed that in making said sale of liquor Mrs. Kamuda was the agent of the respondent. The respondent denied her agency in this respect. He did not testify, and his wife was the only witness called by him in defense. The existence of such agency was a vital question in the state's case. The evidence on the part of the prosecution tended to show that the real estate, including the store building in which the unlawful sale was made, was owned by the respondent and his wife as tenants in common or otherwise, the front part of the building being used as a grocery store, and the part in the rear of the store and connected therewith being occupied by the respondent and his family as their home; but that the store business was owned and carried on by the respondent alone. The testimony of Mrs. Kamuda was to the effect that she was the sole owner of the store, and of the real estate including the building in which the store was kept, having purchased the same from a sister of the respondent, who purchased the property from the respondent eight or nine years before. Mrs. Kamuda further testified that she owned the store business and the proceeds thereof as her separate property, and that her husband was employed by her in that business but received no pay for his services connected therewith; that he did all the buying of groceries for sale in the store, paying therefor by checks, signed by him in her name, delivered the orders, and sold goods in the store when there; that he does the work for her in the grocery business, delivers orders in Florence and Proctor, where he goes "day after day"; that he took care of the grocery business, but did not have anything to do with the liquor or alcohol purchased by her; that she sold a pint of liquor to Pelkey on August 25, 1923, but her husband was in Rutland that day and had no knowledge of the sale; that the money received for intoxicating liquor sold by her she kept separate and apart from the money taken in the sale of groceries.

As will be seen, the tendency of the state's evidence was materially different. Leonard F. Wing, the judge of the Rutland city court, testified that this case came before him some time earlier when arrangements were being made regarding bail being furnished for the respondent, at which time the latter made some statement relating to the ownership of the store in Florence. On being asked what the respondent said, the witness answered:

"He said he owned the store. I think; either the store or the place, I don't remember which. I think he said he owned the store. That was in response to a question as to his financial capacity."

On being asked in cross-examination if this property was not where the respondent and his wife resided, answered that he did not know, but thought it was. The witness further said, in redirect examination, that in looking up the records he found that the respondent owned an undivided half interest in some real estate in Proctor situated over in Florence. Being then asked if that was where the store premises were located, answered, "There is a store there, yes."

The further tendency of the state's evidence was that at times the respondent went out from the store taking orders for and delivering goods sold in the business; that when he was absent for such purpose or otherwise his wife was in the store, selling goods to customers. Ernest Sjblim of Proctor, who had been a quarry foreman for some 30 years, and recently appointed a deputy sheriff, testified to having been in the Kamuda store several times and "around there a whole lot." On being asked, "Q. If you have been in the store, when you have been there, who has been running the business?" answered (pointing to the respondent), "That man." This question was excepted to as calling for a conclusion. But there was no error in the ruling. One definition of the word "run," says Webster's New Int. Dictionary, is "To conduct; manage; carry on; as to run a factory, a hotel, or a business." As thus defined, a person may conduct or manage a grocery store business owned wholly by himself, or partly or wholly by somebody else; and if the witness on the occasions to which he referred went into the store in question and saw the respondent—his wife not being there—engaged in selling and delivering goods to customers, he could properly state that fact and characterize it as "running the business." The...