State v. Nelson
| Citation | 91 Vt. 168,99 A. 881 |
| Court | United States State Supreme Court of Vermont |
| Decision Date | 19 January 1917 |
| Parties | STATE v. NELSON. |
Exceptions from Orange County Court; E. L. Waterman, Judge.
Dan Nelson was convicted of petty larceny, and he brings exceptions. Reversed and remanded.
Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.
Frank S. Williams, State's Atty., of Bradford, for the State. Stanley C. Wilson, of Chelsea, and David S. Conant, of Bradford, for respondent.
This is a prosecution for burglary. The prosecution is by way of an information filed by the state's attorney. On trial in the county court the jury returned a verdict of guilty of larceny of property of the value of $15. The valuation of the property made the offense of which the respondent was found guilty petty larceny under our statute. Judgment was rendered on the verdict, a bill of exceptions was allowed the respondent, execution of sentence was stayed, and the cause passed to this court.
It appeared that the respondent and four other men had been informed against separately in the same manner in respect to the same transaction, that all had been arrested, that the five cases were pending in court, and that all the respondents were represented by counsel.
In this case the state called as witnesses the four men informed against, as above stated. This respondent claimed that all four were incompetent witnesses, and could not be legally called, sworn, and inquired of in the case. But the court held otherwise, and the respondent excepted. However, the court was entirely right. Chamberlain v. Willson, 12 Vt. 491, 36 Am. Dec. 356; State v. Duncan, 78 Vt. 364, 376, 63 Atl. 225, 4 L. R. A. (N. S.) 1144, 112 Am. St. Rep. 922, 6 Ann. Cas. 602; In re Consolidated Rendering Co., 80 Vt. 55, 72-75, 66 Atl. 790, 11 Ann. Cas. 1069. The witnesses were entitled, on examination, to claim their personal privilege of not testifying as to matters that might tend to criminate themselves, and this privilege three of them freely exercised. The court throughout carefully saw to it that the privilege to which they were entitled was accorded to them, when claimed by them, as it frequently was by three of them, and once or twice by the fourth one.
In argument the state's attorney, in commenting upon the testimony of these witnesses, asked the jury to observe what they did, to observe and remember and consider what they testified to, and the reasons given by them for not answering the questions propounded by the state. This argument was promptly excepted to, and the court noted the exception. Nothing was said by the court or by the counsel to indicate that there was any impropriety in the argument, but it was left, under exception, to have its full natural effect.
In considering the weight to be given to the testimony given by a witness, his appearance on the witness stand and his manner of testifying are proper for the consideration of the jury. But at least three of the witnesses, commented on, had given no testimony material to the case, no testimony from which the state claims anything, and the appearance and manner of a witness cannot take the place of substantive evidence. In re Bean's Will, 85 Vt. 452, 459, 82 Atl. 734. The argument in behalf of the state, in effect, asked the jury to conclude what the witnesses could have testified to if they would, and to consider such withheld testimony as having been actually given. The argument in behalf of the state, in so far as it related to the refusal of the witnesses to give testimony, in the exercise of the privilege claimed by them and accorded them by the court, must have been prejudicial in the extreme to the right of the respondent to have his case tried by the jury agreeably to the evidence...
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State v. Stacy
......The ruling, being discretionary, is not to be revised unless an abuse of discretion is shown. Pierce v. Mitchell, 87 Vt. 538, 540, 90 A. 577. The contrary not appearing, we must presume that the discretion was exercised, since the law required it. Murray v. Nelson, 97 Vt. 101, 110, 122 A. 519; Schlitz v. Lowell Mut. Fire Ins. Co., 96 Vt. 337, 342, 119 A. 513. The test is whether the discretion was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable, for to do this would constitute an abuse. Dyer v. Lalor, 94 Vt. 103, ......
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State v. Bert Stacy
......The. ruling, being discretionary, is not to be revised unless an. abuse of discretion is shown. Pierce v. Mitchell , 87 Vt. 538, 540, 90 A. 577. The contrary. not appearing, we must presume that the discretion was. exercised, since the law required it. Murray v. Nelson , 97 Vt. 101, 110, 122 A. 519;. Schlitz v. Lowell Mut. Fire Ins. . Co. , 96 Vt. 337, 342, 119 A. 513. The test is. whether the discretion was exercised on grounds or for. reasons clearly untenable, or to an extent clearly. unreasonable, for to do this would constitute an abuse. Dyer v. ......
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State v. Deso
...the information may be informal, for instance, it fails to allege ownership of the money, an omission which is amendable, State v. Nelson, 91 Vt. 168, 171, 99 A. 881, we may safely assume that if the information is sufficient to charge the highest offense, as admitted by the respondent, it ......
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State v. Donald Deso
...... abetting therein. As no faults are pointed out, we need not. seriously consider such claims. Although the information may. be informal, for instance, it fails to allege ownership of. the money, an omission which is amendable, State v. Nelson , 91 Vt. 168, 171, 99 A. 881, we may safely. assume that if the information is sufficient to charge the. highest offense, as admitted by the respondent, it also. includes all the lower degrees, down to and including simple. assault. . . Upon. the evidence the respondent ......