State v. Ovitt, 491

Citation126 Vt. 320,229 A.2d 237
Decision Date04 April 1967
Docket NumberNo. 491,491
CourtUnited States State Supreme Court of Vermont
PartiesSTATE of Vermont v. Herbert E. OVITT.

Chester S. Ketcham, Sp. Counsel for Atty. Gen., Middlebury, for the state.

Herbert E. Ovitt, pro se.


On May 20, 1964 trial was commenced in the Essex County Court on an information issued by the Deputy Attorney General of the State of Vermont. Court 1 charged the respondent with the crime of rape and Count 2 charged the respondent with assault with the intent to commit rape. On May 26, 1964 the jury rendered a averdict of guilty on each count.

Following a pre-sentence investigation, the respondent was returned to court on July 14, 1964. At that time a motion by the State to set aside the verdict on Count 2 was granted. The respondent was then sentenced to a term of not less than five years nor more than ten years at the Vermont State Prison on the rape conviction. The respondent has appealed.

The respondent argued his case before this Court. An experienced and competent attorney counseled with him during the course of his argument.

The information was filed by Deputy Attorney General 'on his oath of office' in conformity with 13 V.S.A. section 5652 and related sections 3 V.S.A. sections 152 and 153.

Respondent's first contention is that the information is faulty because it was not supported by an affidavit showing personal knowledge and probable cause as determined by a magistrate, and therefore unconstitutional as being in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and Article 10th of the Vermont Constitution.

This issue was fully explored and resolved against the respondent by State v. Barr, 126 Vt. --, 223 A.2d 462, and In re Davis, 126 Vt. --, 224 A.2d 905, Also, see In re Morris, Vt., 229 A.2d 244. Therefore, further comment on this point is unnecessary.

The respondent claims prejudicial error in portions of the general charge, and additional instructions, given to the jurors at the opening of the term of court. This relates to the following excerpts therefrom.

'You may not be aware of it but, at this time you are about to participate in what is known as the law enforcement functions of the County of Essex.'

'* * * it will be a rewarding experience to you as your part in law enforcement in this County.'

'It has been called to my attention that I was slightly misleading in one of my general instructions; that is, I may have created the impression that you are law enforcement officers in your functions as jurors. In the sense you are not carrying badges or making arrests, your functions as jurors is for the purpose of trying the facts and applying the law as the Court directs you, when you deliberate. In the ordinary sense of being law enforcement officers, you are not. This is a unique function you have in the community.'

Counsel for the respondent was present at the time and duly excepted to the foregoing as being prejudicial to the respondent. Upon arraignment of respondent May 20, 1964, and prior to the drawing of a jury, respondent again challenged the general array for reasons above stated.

After the jury was empaneled respondent again reiterated his challenge to the general array for reasons above stated, and moved that the question at issue be passed to the Supreme Court before final judgment in accordance with section 2386 of Title 12 V.S.A. The motion was denied. This was a discretionary ruling and no error appears. John v. Fernandez, 124 Vt. 346, 205 A.2d 552.

The case proceeded to trial and following the conclusion of the evidence, the presiding judge in his charge made the following comments on the phase of the case now being considered. 'You, as members of the jury in this case, are not law enforcement officials. Your sole role in this trial is to determine the facts from the evidence introduced in Court in accordance with the Law as given to you by the Court.'

Later, in the charge to the jury, we find this comment, '* * * it is your sole province to determine the facts in the case.'

It must be conceded that the initial charge to the general panel of jurors was erroneous, and even as supplemented left much to be desired. The jury which tried the case lived with these instructions from May 20, 1964 until May 26, 1964. During that period they may well have considered themselves as members of the prosecuting team.

Notwithstanding the attempted clarification of their duties as defined in the charge to the jury given at the conclusion of the evidence, an erroneous impression of their function may have been sufficiently deep-seated as to have resulted in a misguided and confused impression of their province. Whether or not the erroneous instructions concerning their functions as law enforcement officers had been dismissed from the minds of the jury at the time of their final deliberation in the case is debatable and subject to conjecture.

During the trial, but not in the course of the jury's deliberations, they were allowed to have cocktails or beer with their meals, costing $34.71, which was paid for by the officers in charge of the jury. The respondent urges, by this misconduct, that he was denied due process of law within the meaning of the Fifth and Fourteenth Amendments of the United States Constitution.

A jury is an integral part of the court for the administration of justice and on elementary principles its verdict must be obedient to the court's charge, based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences. The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so. The stringency of this rule is grounded upon the necessity of keeping the administration of justice pure and free from all suspicion of corrupting practices. It is said to be 'imperatively required to secure verdicts based on proofs taken openly at the trial, free from all danger by extraneous influences.' Panko v. Flintkote Co., 7 N.J. 55, 80 A.2d 302.

As stated in State v. Brisson, 124 Vt. 211, 214, 215, 201 A.2d 881, 883, '* * * in criminal cases, trial by jury is a constitutionally protected right. Vt. Const. Ch. I, Art. 10. Due process is involved, and the law is sensitive to any infringement or impairment. * * * When dealing with the integrity of the jury, he has only to show the existence of circumstances capable of prejudicing the deliberative function of the jury. He is not required to prove that they actually did so.' Citing, Bellows Falls Village Corporation v. State Highway Board, 123 Vt. 408, 414, 190 A.2d 695.

As a general rule, it is improper for the jurors to be furnished with, or to indulge in the use of intoxicating liquors during the trial, although it does not of itself vitiate the verdict where no injury or prejudice to accused has resulted therefrom 23A C.J.S. Criminal Law § 1363. On this subject see, Kealoha v. Tanka, 45 Haw. 457, 370 P.2d 468, 6 A.L.R.3d 919; Jones v. People, 6 Colo. 452; Reed v. Chicago B & OR Co., 98 Neb. 19, 151 N.W. 936; WiBaux Realty Co. v. Northern Pac. Ry. Co., 101 Mont. 126, 54 P.2d 1175.

We cannot stop at this point. The parties in their briefs have labeled the use of intoxicating liquor as misconduct on the part of the jurors. More appropriately, here we have misconduct on the part of the officers in charge by furnishing and paying for the intoxicating liquor. Coupled with the contradictory and confusing instructions given by the trial court as to the role of jurors, the foregoing incident presented circumstances capable of influencing the jurors favorable to the State, the thereby capable of prejudicing the deliberative function of the jury. The verdict is tainted with suspicion. See 12 V.S.A. section 1947.

At time of the alleged crime of rape the complainant, Juliette Poulin of Columbia, N. H., referred to in the transcript as Julie, was 18 years of age and the respondent of Charleston, Vermont, a married man, 28 years old.

The unchallenged evidence reveals that on Saturday evening, July 6, 1963, the complainant, respondent, Gordon House, Cecil R. O'Keefe, and Donald C. Bailey started out in an automobile operated by Mr. Bailey. During the evening the parties went to several places in New Hampshire and Vermont.

Viewing the evidence in the light most favorable to the State, during the early morning of July 7, 1963, complainant and respondent separated from their companions. Respondent procured an automobile at his home and with complainant finally proceeded to Wenlock, Town of Charleston, Vermont. They arrived there after five o'clock in the morning, at which place the respondent, without complainant's consent, had intercourse with her.

Complainant was then taken by respondent to the residence of a gril friend, Sharon Ball, who resided with her mother, Mrs. Geraldine Ball, in North Stratford, N. H. Complainant arrived at the Ball residence about six o'clock in the morning.

During the course of the trial the respondent objected to and saved exceptions to the admission and exclusion of certain evidence and by reason...

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  • State v. Hall
    • United States
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    • November 12, 1975
    ...Curtis v. Grifall, 84 Nev. 375, 441 P.2d 680, 681 (1968); McDuff v. State, 431 S.W.2d 547, 550 (Tex.Cr.App.1968); State v. Ovitt, 126 Vt. 320, 229 A.2d 237, 240--241 (1967); Kealoha v. Tanaka, 45 Haw. 457, 370 P.2d 468, 475--477 (Haw.1962); Trent v. Commonwealth, 292 Ky. 735, 166 S.W.2d 100......
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