State v. Lumbra, 571

Citation177 A.2d 356,122 Vt. 467,91 A.L.R.2d 1235
Decision Date02 January 1962
Docket NumberNo. 571,571
Parties, 91 A.L.R.2d 1235 STATE of Vermont v. Perley W. LUMBRA.
CourtUnited States State Supreme Court of Vermont

George T. Costes, Grand Juror for City, St. Albans, for plaintiff.

N. Henry Press, St. Albans, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HULBURD, Chief Justice.

The respondent was found guilty of operating a motor vehicle while under the influence of intoxicating liquor. His motion to set aside the verdict was denied by the trial court. On appeal here, three grounds, all of them pertaining to the motion to set aside, are relied upon. The first of these briefed by the respondent is as follows:

'5. That the Jury, due to its limited deliberations, could have based its Verdict only on the result of the blood test which was unlawfully taken as prescribed in Title 23, § 1190, Vermont Statute Annotated.'

The statement that the jury 'could have based its verdict only on the result of the blood test' runs into the following evidence. On December 24, 1959, the respondent, at the end of his day's work, was at a pre-Christmas party and had had, he 'would say', three drinks. Afterwards he went into the Brown Jug for 'one more drink.' This was a drink of rye. Thereafter, about an hour after he got out of work, the respondent ran into a stopped vehicle as he was attempting to make a turn from one street to another. A police officer was at the intersection and he saw what occurred. To the officer, 'it looked like he (the repondent) was wrestling with the wheel, and he came clear across the other lane, and he hit the other car head-on, almost perfect head-on.' This was in the other vehicle's lane of travel. When he approached the respondent, the officer found an operator who was almost unable to walk or talk. In taking him into custody, he said, 'I had to almost carry him to the police cruiser.' In the officer's opinion the respondent was intoxicated.

From this brief recitation of a part of the evidence, it is readily apparent that it is not true that the jury could have based its verdict only on the result of the blood test. The evidence was such that a jury would have been entirely justified in convicting the respondent as charged without regard to the blood test evidence.

In addition to the foregoing, there was testimony of a Dr. E. A. Morton that he took a blood sample from the respondent. The respondent, himself, testified that prior to the taking of the blood the doctor asked him if he wanted the blood test and that he answered 'yes.' This sample turned out to contain 0.26 per cent by weight of alcohol. At the time this evidence came in, no objection to any of it was made by the respondent. Later, in a motion to set the verdict aside, the respondent raised for the first time the claim that his blood was unlawfully taken. He points to the statute which reads as follows:

'Only a physician acting at the request of an enforcement officer of the department of public safety may withdraw any blood of any person submitting to a chemical test under sections 1188-1194 of this title * * *' 23 V.S.A. § 1190. An inspection of the transcript discloses no definite evidence as to who requested the doctor to withdraw the blood from the respondent. The respondent, by his own testimony, made clear that he consented to its being done. With the evidence standing as we have stated it, the case went to the jury and the respondent was convicted. Thereafter he seeks to raise in his motion to set the verdict aside a question as to whether the blood sample was lawfully taken. We think that the trial court might properly take the position that to allow the respondent to raise this objection for the first time, after verdict, would be unfair to the State. It well may be that had this objection been made at the time that the evidence was being presented that the State could have shown at what officer's request the blood sample was being taken and that in fact it was done at the request of a proper officer. We do not indulge in presumptions that what has been done was done unlawfully. Official actions are presumed to be regular unless the contrary is made to appear. Ryan v. Orient Ins. Co. & Hayes, 96 Vt. 291, 307, 119 A. 423. As the evidence stands, it cannot be said that the blood sample was unlawfully taken. The motion to set the verdict aside was, therefore, properly denied so far as this ground is concerned.

The motion to set aside was also based on the following ground:

'6. That the...

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11 cases
  • State v. Morrill
    • United States
    • Vermont Supreme Court
    • April 1, 1969
    ...before the jurors had time for reasoned deliberation. This precise question was raised by the respondent in State v. Lumbra, 122 Vt. 467, 177 A.2d 356, 91 A.L.R.2d 1235. In that case the jury deliberated approximately eight minutes. Although that case was a prosecution for driving a motor v......
  • Pcolar v. Casella Waste Sys., Inc.
    • United States
    • Vermont Supreme Court
    • October 2, 2012
    ...“indicat[ing], in the circumstances, either a flippant disregard or a perfunctory performance of their duties.” State v. Lumbra, 122 Vt. 467, 470, 177 A.2d 356, 358 (1962). This is not the case here. A one-and-a-half-hour deliberation is sufficient time for a jury to assign fault in a simpl......
  • Estate of Laitinen
    • United States
    • Vermont Supreme Court
    • September 14, 1984
    ...duty. "The law does not attempt to prescribe the length of time which a jury should take to arrive at a verdict," State v. Lumbra, 122 Vt. 467, 469, 177 A.2d 356, 358 (1962), and "[t]here is no law which requires a jury to deliberate any longer than may be necessary to agree upon a verdict.......
  • State v. Arbeitman
    • United States
    • Vermont Supreme Court
    • December 4, 1973
    ...time that a jury must deliberate before returning a verdict. State v. Morrill, 127 Vt. 506, 509, 253 A.2d 142 (1969); State v. Lumbra, 122 Vt. 467, 469, 177 A.2d 356 (1962). Strong evidence of guilt, a lack of complex legal issues, and a proper charge by the court are factors that would nat......
  • Request a trial to view additional results

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