State v. Malnati, 1645.

• Decision Date: 03 May 1938
• Docket Number: No. 1645.,1645.
• Parties: STATE v. MALNATI.
• Court: Vermont Supreme Court

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 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. 394. And so, without deciding whether, under the circumstances any prejudice has been made to appear, the exception is unavailing.

At the close of the charge the respondent took exceptions to the failure to give two certain instructions, neither of which had been made the subject of a written request previously presented to the court. If we treat these exceptions as oral requests to charge, they were properly refused because they were out of time. Municipal court rule 20; Russ v. Good, 90 Vt. 236, 241, 97 A. 987; Clark v. Tudhope, 89 Vt. 246, 250, 95 A. 489; Fadden v. McKinney, 87 Vt. 316, 328, 89 A. 351. Even if they had been seasonably requested the instructions could not have been given. The first was unsound in that it assumed that the police officers took the respondent out of the restaurant without warning him of any violation of law. Although there was a conflict of testimony upon this point, Officer Holland testified that he said to the respondent, "You're under arrest for breach of the peace and ordered to come to the police station." Since the proposed instruction assumed a controverted fact, the failure to give it was not error. Foundry Mfg. Co. v. Farr, 98 Vt. 109, 112, ...