State v. Lizotte, 910.

• Citation: 197 A. 396
• Decision Date: 25 February 1938
• Docket Number: No. 910.,910.
• Parties: STATE v. LIZOTTE.
• Court: United States State Supreme Court of Vermont

197 A. 396

STATE

v. LIZOTTE.

No. 910.

Supreme Court of Vermont. Orleans.

Feb. 25, 1938.

Exceptions from Orleans County Court; Charles B. Adams, Judge.

Hermengilde Lizotte was convicted of maliciously burning a barn, and he brings exceptions.

Judgment affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Alban J. Parker, Deputy Atty. Gen., and Maxwell L. Baton, State's Atty., of Newport, for the State. J. W. Redmond, of Newport, for respondent.

MOULTON, Justice.

The respondent has been found guilty of the crime of maliciously burning the barn of George Tetreault, under P.L. 8421, and has brought the cause here on exceptions.

The evidence for the State tended to show the following facts: George Tetreault and Rose, his wife, owned a farm as tenants by the entirety. The barn, 90 by 36 feet, containing 95 tons of hay, stood on the-easterly side of the highway, and the dwelling house was situated on the westerly side, southerly of the barn, and 126 feet distant from it at the nearest point. The family consisted of George and Rose Tetreault, their two children, and Rose's father, the respondent, who was 72 years old, and, it would seem, of uncertain temper, and who worked for his son-in-law for his board, lodging, clothes, and tobacco, but no wages. The children slept in a room in the northeast corner of the house, on the ground floor; the Tetreaults occupied the room on the southwest corner on the ground floor; the respondent's room was directly above the children's.

At 9:20 on Sunday morning, August 29, 1937, George Tetreault took his wife and children to mass, and the respondent was left alone in the house. Just before starting out, George received a message from his brother saying that the latter's wife was ill, and asking him to get some help. Accordingly, George took his wife and children to the church, went on to his mother's, and took her to his brother's house. He passed by his own place on the way, some 20 to 25 minutes after he had left it, and noticed nothing abnormal, but one-half to three-quarters of an hour later, while he was at his brother's, he received word that his barn was burning. The fire was observed by some neighbors at about 10:15 o'clock. Shortly thereafter it was discovered that the children's room was on fire, the curtains were burned, the windowsill and casing scorched, and the cover of a sewing machine, which stood under the window, was burned, and the machine itself showed the effects of fire. The windows of this room were closed. At the same time, another fire was found in the Tetreaults' room, whereby the curtains and pillows and blankets, and the mattress on the bed, were burned, and the furniture, windowsill, and floor blackened and scorched. The only window of this room was on the south side and was closed, and was opened by a neighbor to permit water to be thrown on the fire. There was no fire in the stove in the house.

The respondent testified that he went to his room after breakfast and slept, but awakened about 9 o'clock, when, looking out of the window, he saw the barn on fire. He then collected all his clothing, shaving utensils, and tobacco, put them in a sack and removed them from the house. But the driver of the milk truck, who stopped at the farm between 9:30 and 10 to pick up the full cans and leave the empty ones, testified that he saw no indication of fire, and the Tetreaults said that no fire was visible when the family left for church at 9:20. When George Tetreault arrived, the roof of the barn was falling in. The wind was blowing from the northwest, so that the flames and sparks were carried away from the house. While the neighbors were engaged in removing the contents of the barn, the respondent stood quietly near the house, looking at the conflagration, without offering or giving any help.

There was evidence of threats made by the respondent against Tetreault and his wife. On one occasion he seized a piece of wood and told Mrs. Tetreault that she "would end from his hands." At another time he said that some day he would cut Mrs. Tetreault's throat with a butcher knife and throw her into the cellar. Again he said that if he could not get his salary he would burn the buildings, or get even with Tetreault in some way. That threats of bodily harm, made by the respondent, and directed toward one of the owners of the property, are admissible in a prosecution for arson as tending to show malice and ill will, is too well established to require citation of authorities. See Underhill, Criminal Evidence, 3d Ed., par. 562. And, of course, evidence of a threat to do the particular act charged is admissible. State v. Fenlason, 78 Me. 495, 501, 7 A. 385.

Several witnesses were permitted to testify, subject to exception by respondent, that he had said that he was going to seize, or attach, the cows and the hay, if Tetreault did not pay him what he owed him. The ground of the exception was that no hostility or ill will was shown by the statement of one who believes himself to be a creditor to the effect that he will attach the property of his debtor if he is not paid. But the evidence was undisputed that the respondent was not to receive wages, but only his lodging, board, clothes, and tobacco, in return for his services; in fact, he himself so testified. There was no claim that the agreed consideration was not furnished by the Tetreaults. Under these circumstances, the statements attributed to him had a tendency to show ill will, and were properly received in evidence.

In one instance, the statement concerning a proposed attachment of the cattle was interpolated by a witness in response to a question concerning the threat to burn the buildings. No exception was taken to the asking of the question, and the offer did not include the matter. Although this part of the answer was unresponsive, there was no request to strike it out, and the court treated it as under exception. That it was admissible already appears. No prejudice to the respondent appears from this procedure.

The fact that these various threats occurred from a few months to three years before the fire did not operate to exclude them. The question of remoteness was one that called for the exercise of the trial court's discretion. State v. Averill, 85 Vt. 115, 122, 81 A. 461, Ann.Cas.1914B, 1005; Woodhouse v. Woodhouse, 99 Vt. 91, 119, 130 A. 758; Waterman v. Moody, 92 Vt. 218, 235, 103 A. 325; Commonwealth v. Quinn, 150 Mass. 401, 404, 23 N.E. 54. No abuse of discretion is made to appear.

The respondent offered to prove that the buildings were insured in favor of the Tetreaults, and that there was a mortgage on the farm, as tending to show that the Tetreaults themselves had a motive to burn the house and barn. It was claimed, also, that the Tetreaults had an opportunity to set the fire before they departed for church. All connection between them and the respondent with regard to the burning was emphatically disclaimed by respondent's counsel. There was no claim that the premises were overinsured, or that the Tetrcaults were pressed for money. The offered evidence was excluded, subject in each instance to respondent's exception.

Assuming that the offered evidence had the tendency claimed for it, there was no error in the ruling. "While it is always competent for a respondent to give evidence tending to show that another committed the crime of which he is charged, * * * it is not enough to show merely that another had a motive...