State v. Orlando Coolidge
| Decision Date | 06 February 1934 |
| Citation | 171 A. 244,106 Vt. 183 |
| Parties | STATE v. ORLANDO COOLIDGE ET AL |
| Court | Vermont Supreme Court |
November Term, 1933.
Conspiracy---Witnesses---Cross-examination of State's Witness as to Arrests---Evidence of Conviction of Crime on Question of Witness' Credibility---Waiver of Exceptions by Failure To Brief---Question As to Admissibility of Evidence Not Raised Below---General Exception---Sufficiency of Evidence to Justify Refusal of Motion for Directed Verdict---Duty of State as To Producing Witnesses---Right of State To Question Credibility of Its Own Witnesses---Improper Argument of Counsel---Waiver of Improper Argument by Failure To Except Thereto at Time---Inadequate Briefing---Advising Jury as to Caution about Giving Credit to Uncorroborated Testimony of Accomplice as Rule of Practice Rather Than of Law---Motion for Directed Verdict---Discretion of Court---Status of Conspiracy as Crime under Common Law and Law of State---Punishment for Conspiracy---G. L. 7130.
1. In prosecution for conspiracy to defraud State, where testimony of accomplice called as witness by State tended to prove some of alleged conspiracies, exclusion of question on cross-examina-
tion as to how many times he had been arrested, held without error.
2. That witness has been convicted of crime, though not involving moral turpitude, is admissible as affecting credibility, but proof merely of arrest is not admissible for that purpose.
3. Where respondents do not brief grounds upon which exceptions were allowed, Supreme Court will not consider them.
4. Question as to admissibility of evidence, not raised below will not be considered by Supreme Court on exceptions.
5. In prosecution for conspiracy to defraud State by fraudulently obtaining bounty certificates from town clerk for killing bobcats, exception to admission in evidence of each and every one of number of certificates issued by town clerks for such bounties on ground that certificates were not sufficiently identified with respondent, held too general to be availing where respondents conceded below that some of such certificates were admissible.
6. In such prosecution, denial of respondent's motion for directed verdict on ground that there was no evidence of any conspiracy to collect such bounties, held without error.
7. State does not give credence to witness by introducing him it being State's duty in criminal cases to produce and use all witnesses within reach of process whose testimony will shed light on transaction, whether it makes for or against accused.
8. State may claim as to testimony of its witnesses that part is true and rest false, according as jury shall find upon all evidence.
9. In prosecution for conspiracy to defraud State, remark of State's attorney in argument to jury that conduct of respondents had cost State money, held improper, but exception was waived by failure of respondents to claim exception at time remark was made rather than excepting thereto at close of argument.
10. Briefing on exception to refusal of court to charge in accordance with each of respondents' first seven requests to charge, that such requests were reasonable and failure to charge in accordance therewith constituted reversible error held inadequate.
11. Rule that court should advise jury to be cautious about giving credit to uncorroborated testimony of accomplice is rule of practice and not of law, and failure to comply with it is not error.
12. Motion to set aside verdict as being contrary to evidence and weight of evidence is addressed to sound legal discretion of court.
13. In prosecution for conspiracy to defraud State, denial of motion to set aside verdict as being contrary to evidence and weight of evidence, held not shown to be abuse of discretion.
14. Conspiracy was offense at common law, and consequently is offense in Vermont, such provision of common law being applicable to local situation and circumstances and not repugnant to Constitution of State or its laws.
15. Conspiracy is misdemeanor at common law, and is crime separate and distinct from offense for doing of which conspiracy was formed.
16. Punishment for misdemeanor at common law, when law had not provided some other specific penalty, was fine and imprisonment, or either, at discretion of court, and that is law of Vermont.
17. In prosecution for conspiracy to defraud State by fraudulently obtaining bounty certificates from town clerks and bounties for bobcats killed outside State, imposing of sentence on respondents respectively of certain terms of imprisonment in house of correction, held without error, since there was no specific penalty for offense other than provided by common law, and G. L. 7130 provides that where offense is punishable by imprisonment, and such imprisonment is not specified to be in State prison, it shall be construed to mean imprisonment in house of correction.
INFORMATION for conspiracy to defraud State. Plea, not guilty. Trial by jury at the December Term, 1932, Windsor County, Sturtevant, J., presiding. At the close of all the evidence, the court directed verdict for respondents on three of seven counts in information. Verdict of guilty on each of other four counts. Judgment, and sentence thereon. The respondents excepted. The opinion states the case.
Exceptions overruled. Let execution be done.
Loren R. Pierce for the respondents.
Alban J. Parker, State's attorney, for the State.
Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
The respondents are charged with having conspired to defraud the State of Vermont. There are seven counts in the information. At the close of all the evidence, the court directed a verdict for the respondents on the second, third, and seventh counts. The jury returned a verdict of guilty on each of the four other counts.
G. L. 6606, No. 130 of the Acts of 1929, provides:
G. L. 6609 provides that said treasurer shall annually on or before the first of June, present all such certificates received by him to the auditor of accounts, who shall draw an order in favor of such town for the amount of such certificates.
It is alleged in the first count that the respondents, with intent to defraud the State of Vermont, combined and conspired with other evilly disposed persons to obtain by false pretenses from the town clerk of Chester a certificate for the payment of the bounty on three bobcats and thereafter obtain from the treasurer of Chester the sum of thirty dollars; that the respondents were possessed of the skins of these bobcats which were not killed in this State, and which were not killed by one Wilfred Couture; that the respondents delivered said three skins to said Couture, and conspired and agreed with him that he should present the skins to the town clerk of Chester, and falsely represent that he killed said bobcats in this State, and that he was a bona fide resident of the town of Chester, so as to obtain a certificate for the payment of the bounty on said bobcats, and to have him present the same to the town clerk for payment. The allegations in the fourth, fifth, and sixth counts are the same as those in the first count except as to the time when the alleged offense was committed, the number of bobcats involved, the town clerk upon whom the fraud was perpetrated and the person who actually perpetrated it.
The testimony of Alva Martin, an accomplice, who was called as a witness by the State, tended to prove some of the alleged conspiracies. He testified that on two occasions, at the solicitation of the respondents, he obtained certificates for the payment of bounties on bobcats, the skins or bodies of which were furnished to him by the respondents, and which they told him were obtained outside the State, that he obtained the money on the certificates from the town treasurer and gave it to the respondents; that they gave him a certain amount of the money for his services in obtaining it. He was asked on cross-examination: "How many times have you been arrested?" The respondents were allowed an exception to the exclusion of the question. There is no error here. The fact that a witness has been convicted of a crime, although it may not involve moral turpitude, is admissible as affecting his credibility. Underwood v. Cray, 94 Vt. 58, 108 A. 513. But proof merely of an arrest is not admissible for that purpose. State v. Sanderson, 83 Vt. 351, 353, 75 A. 961; State v. Hodgdon, 89 Vt. 148, 150, 94 A. 301; Paska v. Saunders, 103 Vt. 204, 213, 153 A. 451. It appears that before this question was asked, the witness testified that he had been convicted of a crime.
It appears that in September, 1932, certain officers accompanied by one Clarence Wiley, a deputy game warden, searched the premises of the respondents under a search warrant for intoxicating liquor; that during the search Wiley found two whole "old" bobcats in a bag in the garage where one of the respondents kept his automobile, and that he took them away with him. The skins of those bobcats were received in evidence and...
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