State v. Kent

• Decision Date: 12 November 1909
• Citation: 83 Vt. 28,74 A. 389
• Parties: STATE v. KENT.
• Court: Vermont Supreme Court

74 A. 389

83 Vt. 28

STATE

v. KENT.

Supreme Court of Vermont. Rutland.

Nov. 12, 1909.

Exceptions from Rutland County Court; Eleazer L. Waterman, Judge.

Elroy Kent was convicted of murder, and he brings exceptions. No error.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

John G. Sargent, Atty. Gen., and Joseph C. Jones, State's Atty., for the State. Ernest H. O'Brien, for respondent.

MUNSON, J. The respondent stands convicted of the murder of Delia Congdon, who lived alone in the east part of Wallingford, and whose body was found in her house about noon on the 24th day of July, 1908, in a condition which indicated that she had been ravished, and with several deep cuts upon the head. The respondent escaped from the state hospital for the insane at Waterbury on the 11th of July, was seen in the east part of Wallingford by several persons between the 11th and 24th, and was arrested at Pittsfield, Mass., in the following October. There was evidence that he was seen on the 22d of July, about three miles from the Congdon house, at a deserted building known as the "Monadnock Club House," and that on the 20th there was found carved on a door in the Buffum house, a deserted building about three-fourths of a mile from the club house, the following date, "July. 22. 1908", and below it the name "E. Kent"; each punctuated as shown. The barn on the Congdon place stood within a hundred feet of the house, with the side containing the double doors facing the window of Miss Congdon's bedroom. There was no evidence that the respondent had been seen in the immediate vicinity of the Congdon house; but there was evidence of his having stated that he passed the night of the 23d in the Congdon barn, and that he saw the deceased through a crack in the barn door when she got up, and that he went there for that purpose. There was also evidence that some new hay had been put on the barn floor on the 22d of July, and that on the 20th the letters "E. K", punctuated as shown, were found carved on the inner side of the barn door, and that some freshly whittled shavings of the same kind of wood as the door were found on the hay directly beneath the carving, and that a little further back from the door there was a hollow in the hay which looked as though some one had lain there. There was also the testimony of an officer that in pursuing his investigations he had found the letters "E. K." cut in several places in other towns, and that he afterwards told the respondent about his finding these cuttings, and where he had found them, and that the respondent said he had been to those places and cut his initials there. The state introduced in evidence a piece of wood, taken from the handle of a lawn mower used at Waterbury, on which there was printed with a lead pencil the name "E. Kent", in capital letters, and punctuated as shown. The state also introduced a memorandum book, which contained many entries of dates in September and October. 1908, and a letter bearing date October 23, 1908, addressed to the superintendent at Waterbury, both of which were in the respondent's possession at the time of his arrest. All these writings are the unquestioned work of the respondent, and no objection was made to their admission. The state then offered sections taken from the Buffum and Congdon doors, on which were the cuttings above described. The defense objected to the admission of these on the ground that there was nothing in the case to connect the respondent with them; but the court received them, and the respondent excepted. It is now urged in support of the exception that the handwriting of a person affords no standard of comparison that can justify the admission of carved letters or numerals on the ground of similarity. The question thus raised is the only one in the case.

It is not necessary to trace the uncertain steps by which the law of this subject reached its present state, nor to consider the varied holdings which prevail in different jurisdictions. It has long been the settled doctrine of this state that, when the genuineness of a writing is in question, other writings admitted or proved to be genuine may be received and submitted to the jury for the purpose of comparison, although not otherwise material to the issue. Adams v. Field, 21 Vt. 256. The law formerly confined this proof to civil cases; but our court has allowed it in criminal cases also, and this practice is now almost universal. State v. Ward, 39 Vt. 225; Wig. § 1991, note 11; 1 Best, Ev. *347. It has been doubted whether signatures made by a cross are capable of proof by comparison; but the evidence has been allowed in cases where some marked peculiarity of the character could be pointed out. Note 65 L. R. A. 95. See Sanborn v. Cole, 63 Vt. 590, 22 Atl. 716, 14 L. K. A. 208. We know of no case in which the evidentiary effect of punctuation marks has been passed upon; but learned writers have spoken of the use made of them as one of the means for testing the authenticity of a writing. 1 Green. § 581, note b.

All the letters in the carved inscriptions are like the capitals of print, while the capitals contained in the book and letter are those of ordinary handwriting. The numerals contained in the Buffum house inscription are repeated many times in the book; but it is urged that there can be no fair comparison between them because of the difference in the tools and methods employed in making them. Passing these matters wherein the genuine and disputed writings differ, we take up the method of punctuation, a feature of the writings to which the objection just stated has no application. The memorandum book contains on different pages 15 complete dates in regular form, and the letter has 2 more, making a total of 17, in all but 1 of which the name of the month is...