State v. Murray, 42

Docket NºNo. 42
Citation123 Vt. 232, 186 A.2d 193
Case DateNovember 07, 1962
CourtUnited States State Supreme Court of Vermont

Peter F. Langrock, State's Atty., Middlebury, for plaintiff.

Reginald T. Abare, Barre, for defendant.


BARNEY, Justice.

This case was brought here from Addison County Court by the timely filing of a notice of appeal. It was conceded on argument that the questions sought to be presented were not based upon any objections or exceptions taken during the trial.

The respondent contends that the taking of an appeal preserved his right to question the sufficiency of the evidence to support the verdict. He further advances the proposition that, because there is a duty that the court charge correctly on all material issues, a charge can be questioned in that particular on appeal, although it went completely unchallenged below.

Recent cases have disposed of both of these questions adversely to the respondent. In State v. Lumbra, 122 Vt. 467, 177 A.2d 356, the respondent unsuccessfully attempted to have a verdict set aside by raising a question as to the lawfulness of evidence received at the trial without opposition. In State v. Coburn, 122 Vt. 102, 165 A.2d 349, it is made clear that error can be predicated on a failure to charge on an essential element of the case only if 'the mistake was raised and brought to light at the trial.' State v. Coburn, supra, 122 Vt. 106, 165 A.2d p. 353.

Both of these decisions are examples of a long-standing principle of procedure, fundamental to the process of judicial review. Before any action taken by a court in the conduct of a trial can be held to be an error of law, it must be demonstrated that the questioned ruling was brought to the attention of the court in a manner that gave notice of the difficulty and the court given an opportunity for correction. Judge, later Chief Justice, Powers said that a question 'must be brought before us by an appropriate exception. And this implies such an exception as reasonably indicated to the trial court the fault they found with his ruling. No exception is 'appropriate' that leaves that court in ignorance of the precise ground on which it is predicated.' Morgan v. Gould, 96 Vt. 275, 279, 119 A. 517, 519.

In 1959 the legislature passed what is now 12 V.S.A. § 2381. As it states, the purpose of this section is to eliminate the necessity for formal exceptions. This refers to the former procedure by which it was...

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9 cases
  • State v. Kasper
    • United States
    • Vermont Supreme Court
    • April 5, 1979
    ...Vt. 273, 277, 108 A.2d 390, 393 (1954). We consider this principle "fundamental to the process of judicial review." State v. Murray, 123 Vt. 232, 233, 186 A.2d 193 (1962). Its purpose is to require that correctable error be addressed initially in the trial court. Its justification lies in p......
  • Pond v. Carter
    • United States
    • Vermont Supreme Court
    • April 4, 1967
    ...of § 2381, supra. State v. Stone, 124 Vt. 215, 216, 201 A.2d 703; State v. Hood, 123 Vt. 273, 277, 278, 187 A.2d 499; State v. Murray, 123 Vt. 232, 233, 186 A.2d 193; State v. Coburn, 122 Vt. 102, 106, 165 A.2d The exception pointed out no specific deficiency in the charge nor did it make k......
  • State v. Crosby, 307
    • United States
    • Vermont Supreme Court
    • October 6, 1964
    ...matter of inferences. State v. Jackson, 101 Vt. 416, 418, 144 A. 193; State v. Hood, 123 Vt. 273, 277, 187 A.2d 499; State v. Murry, 123 Vt. 232, 233, 186 A.2d 193. If we can assume the instruction the respondent had in mind was that the jury should be told it could not base an inference up......
  • Dodge v. McArthur
    • United States
    • Vermont Supreme Court
    • October 4, 1966
    ...the trial court has been so alerted to the claimed error that it had a fair opportunity to correct itself if it chose. State v. Murray, 123 Vt. 232, 233-234, 186 A.2d 193. Without a specific objection to the content of the charge as given, the issue is available only if the transcript indic......
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