State v. Malnati, No. 1645.

Docket NºNo. 1645.
Citation199 A. 249
Case DateMay 03, 1938
CourtUnited States State Supreme Court of Vermont
199 A. 249

STATE
v.
MALNATI.

No. 1645.

Supreme Court of Vermont. Washington.

May 3, 1938.


Exceptions from Barre Municipal Court; H. William Scott, Judge.

Jack Malnati was convicted for a breach of the peace, and he brings exceptions.

Affirmed.

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

Webster E. Miller, State's Atty., of Montpelier, and Henry A. Milne, City Grand Juror, of Barre, for the State. C. O. Granai, of Barre, for respondent.

MOULTON, Justice.

According to testimony introduced by the State, the respondent used loud, profane and indecent language, at about 12:30 a. m., while outside an all-night lunchroom. He was cautioned to refrain by Police Officer Holland, but, as he entered the lunchroom, he persisted in his objectionable behavior. Holland then went inside and placed him under arrest. He resisted vigorously, but was finally overpowered by the policeman, assisted by Police Officer Leslie. In the course of the scuffle he kicked Holland in the abdomen, inflicting a painful injury. This is the act charged against him on his trial for a breach of the peace. He was convicted, and has brought the cause to this court on exceptions.

The first exception calls in question a remark made by the judge in ruling upon a question asked by respondent's counsel during the cross-examination of Leslie. It appeared that a crowd of 75 to 100 persons had collected in front of the lunchroom, and, as the disturbance went on, a few of them protested against the arrest. The inquiry was whether a certain unnamed person was arrested because he said to policeman, "Leave the fellow alone. He hasn't done anything." In excluding the question, the judge said that "it was the judgment of the officers rather than that of the rabble that they should make the arrest." An exception was taken to the use of the word "rabble," and

199 A. 250

the judge replied, "All of those who are interested in trying to prevent officers from doing their duty bear that title."

The ground of exception as stated below was that the word was prejudicial, without any attempt to point out how the respondent's interests were affected by it. Obviously, this objection is too general to require attention. It is argued, however, that since all of respondent's witnesses were among those present at the occurrence, what the judge said was in effect, and in advance of their testimony, a characterization of them as disreputable persons, whose word was not entitled to credit. If this point had been clearly stated on trial, it may well be assumed that the judge would have disclaimed to the jury any intention to reflect upon the credibility of the witnesses who would be called in defense. Since the exception as taken below was not sufficiently explicit to apprise the judge of the real point of objection, it is not for consideration here. Higgins, Adm'r, v. Metzger, 101 Vt. 285, 296, 143 A....

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8 practice notes
  • State v. Peters, No. 409-80
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 8, 1982
    ...recognized that under certain circumstances one may resist an unlawful arrest with reasonable force. E.g., State v. Malnati, 109 Vt. 429, 199 A. 249 (1938) (warrantless arrest); State v. Jasmin, 105 Vt. 531, 168 A. 545 (1933) (warrantless arrest); State v. Mancini, 91 Vt. 507, 510, 101 A. 5......
  • State v. Baril, No. 1916
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 4, 1969
    ...proper instructions at the time of its occurrence. State v. Schoolcraft, 110 Vt. 393, 396, 8 A.2d 682; State v. Malnati, 109 Vt. 429, 432, 199 A. 249; State v. Marino, 91 Vt. 237, 241, 99 A. Since it is the duty of both court and prosecutor to conduct the trial with complete fairness, we ha......
  • The Children's Store v. Cody Enterprises, Inc., No. 87-482
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 3, 1990
    ...and be accompanied by instructions which plainly leave the determination with the jury. See also State v. Malnati, 109 Vt. 429, 433, 199 A. 249, 250-51 (1938) (no error in trial judge's statement of opinion that there was perjury in the case where the decision and the evaluation of the cred......
  • State v. Greaves, No. 1096.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 4, 1941
    ...It is, therefore, too general to re-receive consideration here and we give this no further attention. State v. Malnati, 109 Vt. 429, 431, 199 A. 249. 2. The First and Fourteenth Amendments to the United States Constitution are as "Article 1. Congress shall make no law respecting an establis......
  • Request a trial to view additional results
8 cases
  • State v. Peters, No. 409-80
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 8, 1982
    ...recognized that under certain circumstances one may resist an unlawful arrest with reasonable force. E.g., State v. Malnati, 109 Vt. 429, 199 A. 249 (1938) (warrantless arrest); State v. Jasmin, 105 Vt. 531, 168 A. 545 (1933) (warrantless arrest); State v. Mancini, 91 Vt. 507, 510, 101 A. 5......
  • State v. Baril, No. 1916
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 4, 1969
    ...proper instructions at the time of its occurrence. State v. Schoolcraft, 110 Vt. 393, 396, 8 A.2d 682; State v. Malnati, 109 Vt. 429, 432, 199 A. 249; State v. Marino, 91 Vt. 237, 241, 99 A. Since it is the duty of both court and prosecutor to conduct the trial with complete fairness, we ha......
  • The Children's Store v. Cody Enterprises, Inc., No. 87-482
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 3, 1990
    ...and be accompanied by instructions which plainly leave the determination with the jury. See also State v. Malnati, 109 Vt. 429, 433, 199 A. 249, 250-51 (1938) (no error in trial judge's statement of opinion that there was perjury in the case where the decision and the evaluation of the cred......
  • State v. Greaves, No. 1096.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 4, 1941
    ...It is, therefore, too general to re-receive consideration here and we give this no further attention. State v. Malnati, 109 Vt. 429, 431, 199 A. 249. 2. The First and Fourteenth Amendments to the United States Constitution are as "Article 1. Congress shall make no law respecting an est......
  • Request a trial to view additional results

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