State v. Longe

Decision Date09 February 1922
Citation116 A. 81,96 Vt. 7
CourtVermont Supreme Court

January Term, 1922.

INDICTMENT for murder in first degree. Plea, not guilty. Trial by Jury, March Term, 1921, Rutland County, Moulton, J presiding. Verdict, guilty of murder in the second degree. The respondent excepted. The opinion states the case. Exceptions Overruled.

Judgment that there was no error in the proceeding below and that the respondent take nothing by his exceptions.

William H. Preston for the respondent.

Frank C. Archibald, Attorney General, and Charles E Novak, State's Attorney, for the State.



The respondent was tried under an indictment charging him with the murder in the first degree, of Owen Hayes at Fair Haven, on October 1, 1920, and was convicted of murder in the second degree.

Owen Hayes of Fair Haven, a man fifty-six years of age, suddenly disappeared on the evening of the day above named, and his body was found in the Castleton River in the village of Fair Haven on the 12th day of the same month.

On March 19, 1921, nine photographs were taken, by the procurement of the State's Attorney, of the locus criminis. These photographs, being offered in evidence were received subject to exception solely on the ground that they were not admissible unless followed by evidence tending to show the conditions, when they were taken, were the same as on October 1, when the alleged crime was committed. The court ruled that the fact of some change in the premises between the time of the occurrence and the time of taking the photographs did not operate to exclude the latter as evidence. There was no error in this ruling. Any change in the conditions was open to explanation. Aldrich v. Boston & Maine R. R., 91 Vt. 379, 100 A. 765.

Exception 2 raises a similar legal question. One Strobell, a civil engineer, was employed by the State to make a plan of that part of the village of Fair Haven, where the crime was supposed to have been committed. For this purpose he visited the locus criminis and made observations and measurements on two or more days immediately following the middle of March, 1921. He was called by the State as a witness, and in connection with his testimony the plan made by him was introduced in evidence as an exhibit. Having testified that on March 22nd he made tests for the purpose of determining the velocity of the flow of the water of Castleton River a short distance below where the body of Hayes, by the tendency of the State's evidence, was put into the river, and again a few rods above where it was found floating in the stream twelve days later, the witness was permitted to testify what he determined the velocity to be at the time he made the tests. This evidence was received subject to exception on the ground that it would not show what the conditions were on the previous October 1st, when the crime was committed. Thereupon the Attorney General stated that evidence would be offered to show that at the time the crime was committed the water was flowing at substantially the same velocity as when the tests were made. The evidence was received on condition that such connection be made. The respondent says the prosecution failed to do this, and so the reception of the evidence in question was error. There is no disagreement with this conclusion of law; but the State says the error was harmless. With this we quite agree. It is hardly conceivable that evidence of the velocity of the water on the 22nd day of the spring month of March, standing alone, would affect, to the respondent's prejudice, the minds of the jurors as to the velocity on the 1st day of the fall month of October, approximately five and two-thirds months before. We therefore fail to believe that the error injuriously affected the rights of the parties. See Rule 7, Supreme Court (99 A. viii).

Exceptions 3, 4, 5, and 7 are grouped together by respondent's counsel, as raising the question as to the admissibility of evidence of voluntary statements made by the respondent prior to his arrest, tending to implicate him in the crime for which he was later indicted and then on trial. The ground of the exception was, that any statement he may have made would not be admissible at the time these were offered, for the corpus delicti of the crime charged had not been established.

At common law--we have no statute on the subject--corpus delicti means the body of the crime, and as connected with homicide is made up of two elements, first, the death of a person, and second, that the death was produced through criminal agency. 7 R. C. L. 743-745; People v Benham, 160 N.Y. 402, 425, 55 N.E. 11. As to the first element, the uncontroverted evidence showed the fact of a sudden and unexplained disappearance of Owen Hayes, in the evening of October 1, 1920, and that a dead body, identified as his, was found October 12th, floating in Castleton River, in the village of Fair Haven, partially decomposed and bearing indications of having been in the water from about the time of his disappearance until it was thus found. So far the respondent makes no question, his claim of failure of the State to establish the corpus delicti being asserted in argument exclusively as to the second element, which we proceed to...

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4 cases
  • Dent v. Falls
    • United States
    • Vermont Supreme Court
    • February 9, 1922
    ... ... 400, ... where other cases are cited. As uncertainty in a bill of ... exceptions must be solved against the excepting party ( ... State v. Marino, 91 Vt. 237, 99 A. 882; ... Reynolds v. Bean, 91 Vt. 247, 99 A. 1013), ... it should be held that the exception to the overruling of ... open to explanation. Aldrich v. Boston and Maine ... R. R., 91 Vt. 379, 384, 100 A. 765; State v ... Longe, 96 Vt. 7, 116 A. 81 ...           ... Numerous exceptions were taken to the admission of evidence ... relating to the use made of the ... ...
  • State v. Joel W. Pierce
    • United States
    • Vermont Supreme Court
    • May 5, 1931
    ... ... 386] the wiring inside the house, where the ... State, on trial, claimed that the tapping was done. But this ... question involves an examination of the evidence and this is ... no part of the record to which we are confined in reviewing ... the ruling on the motion. State v. Longe, ... 96 Vt. 7, 13, 116 A. 81, and cases cited; Boville v ... Dalton Paper Mills, 86 Vt. 305, 318, 319, 85 A. 623 ... The motion in arrest of judgment was without merit ...          The ... grounds for the motion to set aside the verdict were that it ... was against the weight of ... ...
  • State v. Frank Jurras
    • United States
    • Vermont Supreme Court
    • November 9, 1923
    ...the motion in arrest was an oral motion, and so did not comply with the rule which requires all such motions to be in writing. State v. Longe, 96 Vt. 7, 116 A. 81. steps taken to raise the question now relied upon were plainly inadequate to make the question available on review. Cady v. Lan......
  • Delaware & Hudson Company v. Rutland Railroad Co.
    • United States
    • Vermont Supreme Court
    • February 9, 1922

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