State v. McMann, 139-74

Decision Date01 April 1975
Docket NumberNo. 139-74,139-74
Citation336 A.2d 190,133 Vt. 288
PartiesSTATE of Vermont v. David N. McMANN.
CourtVermont Supreme Court

Dale O. Gray, State's Atty., St. Johnsbury, for plaintiff.

Brock & Sidel, Montpelier, for defendant.

Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

LARROW, Justice.

Respondent was tried by jury in the District Court of Vermont, Unit No. 4, Essex Circuit, and found guilty of a nighttime attempt to break and enter the dwelling house of one Sawyer, in which personal property the subject of larceny was situated, with intent to commit larceny. As ground of error, he here asserts a lack of sufficient evidence to support a finding of larcenous intent, error in denying his motion for directed verdict and for judgment notwithstanding the verdict based upon such lack, and the ineffectiveness of his trial counsel. Trial counsel was, of course, not the attorneys now representing him.

The facts evolved at trial involve many unique aspects, including a pursuit initiated some time after the alleged burglary attempt by the house occupant and his wife, a somewhat bizarre shooting of the respondent's unarmed companion under a claim of self-defense, and the role of a young bull used as a watchdog. But essentially the State proved, largely by testimony of Sawyer and his wife and the admissions of respondent, that on the date in question respondent and another (or possibly two others) came by car over a long private road in the early morning hours to the former U.S. radar base in East Haven, Vermont, then occupied by Sawyer and his wife. While one held off the watchdog bull, another tried three doors, all secured, at the residence. One door was within the building, entered through an open vestibule. No door was opened, although all were vigorously shaken. The visitors were not interrupted, although Sawyer and his wife observed them from within the dwelling. They then went to an adjacent garage and entered it by shoving aside a temporary covering of a broken window. The overhead door of the garage was opened from within, but nothing was taken from the garage. The visitors then left, and after a short interval, Sawyer and his wife, armed with gun and poker, took up the pursuit. The shooting, and subsequent arrest, ensued at a point some two miles distant from the residence, on the private road leading to it.

On trial, respondent admitted being at the scene, but denied any criminal intent. A criminal record, including two robbery convictions, was elicited from him by questioning of his own counsel.

Respondent argues that the record below is lacking in evidence required to support a jury finding of the specific intent to commit larceny, an essential element of the offense with which he was charged. Such intent is a matter of state of mind, necessarily proved, in the absence of admission, only by inference from attendant circumstances, State v. Reed, 127 Vt. 532, 538, 253 A.2d 227 (1969). Respondent argues, we think correctly, that where evidence of such intent is purely circumstantial, as here, it must be so cogent as to exclude every reasonable hypothesis consistent with his innocence. State v. Levy, 113 Vt. 459, 461, 35 A.2d 853 (1944). The evidence here has no such cogency. At best, it shows that respondent tried three locked doors, but desisted from any further attempts to open them. He then entered another building, in which personal property was located, but took nothing. Then he left, without being subjected to any outside interruption of his alleged efforts. Touching only briefly on these facts in argument, the State quite clearly put its main reliance, for proof of intent, upon the previous convictions of the respondent for robbery. It argued, albeit without objection, that 'robbery is stealing, stealing is larceny, that is what he has been charged with.' The charge of the court was merely to the effect that prior convictions, involving moral turpitude, affected respondent's credibility as a witness; that intent could be inferred from all the circumstances, making sure that the only reasonable intent to be inferred was that of intent to commit larceny. The instructions did not negate in any manner the State's argument that such intent could be inferred from prior convictions.

It is, of course,...

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14 cases
  • Stewart, In re
    • United States
    • Vermont Supreme Court
    • November 3, 1981
    ...have stated that an individual need not be incarcerated to satisfy the "in custody" requirement of 13 V.S.A. § 7131. In State v. McMann, 133 Vt. 288, 336 A.2d 190 (1975), the Court said in Nor would (post-conviction) relief be precluded, we feel, by the requirement of 13 V.S.A. § 7131 that ......
  • In re Chandler
    • United States
    • Vermont Supreme Court
    • February 15, 2013
    ...of counsel because we generally require such claims to be raised in post-conviction proceedings. See State v. McMann, 133 Vt. 288, 291, 336 A.2d 190, 192–93 (1975) (noting that a challenge based on ineffective assistance of counsel was most properly raised during post-conviction proceedings......
  • State v. Smith, 81-80
    • United States
    • Vermont Supreme Court
    • September 22, 1981
    ...subject of referring to prior offenses, see State v. Lapham, 135 Vt. 393, 406-08, 377 A.2d 249, 257-58 (1977); State v. McMann, 133 Vt. 288, 290-91, 336 A.2d 190, 192 (1975); State v. Bogart, 132 Vt. 8, 11-12, 312 A.2d 733, 734-35 (1973); State v. Levine, 117 Vt. 320, 327, 91 A.2d 678, 682 ......
  • In re Chandler, 2012-073
    • United States
    • Vermont Supreme Court
    • February 15, 2013
    ...of counsel because we generally require such claims to be raised in post-conviction proceedings. See State v. McMann, 133 Vt. 288, 291, 336 A.2d 190, 192-193 (1975) (noting that a challenge based on ineffective assistance of counsel was most properly raised during post-conviction proceeding......
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