State v. Raymond Jasmin

• Decision Date: 10 October 1933
• Citation: 168 A. 545,105 Vt. 531
• Parties: STATE v. RAYMOND JASMIN
• Court: Vermont Supreme Court

168 A. 545

105 Vt. 531

STATE v. RAYMOND JASMIN

Supreme Court of Vermont

October 10, 1933

May Term, 1933.

Criminal Law---Waiver of Motion To Dismiss Complaint Where Respondent Proceeded with Trial by Introducing Evidence---"Loiter"---G. L. 6967---Sufficiency of Evidence To Support [105 Vt. 532] ---Conviction for Loitering---Effect of Resistance to Arrest---Breach of The Peace---Right of Officer To Arrest without Warrant for Breach of Peace or To Prevent Breach of Peace---Sufficiency of Facts To Justify Arrest Without Warrant of Person Loitering---Claim Not Made Below Not Available to Respondent on Exceptions in Supreme Court---Evidence---Conduct of Person Charged with Loitering Prior To Arrest---Trial---Remarks of Court---Harmless Error---General Exceptions.

1. Exception to overruling of motion to dismiss complaint for failure of proof, made at close of State's evidence, held unavailing, where respondent proceeded with defense by introducing evidence and did not renew motion at close of evidence.

2. "Loiter," as used in G. L. 6967, relating to loitering, means to spend time idly.

3. Easement acquired by public in streets does not give right to make street corner a loafing place.

4. Evidence held to support conviction of respondent for loitering.

5. Resistance to lawful arrest amounts to breach of peace, but illegal arrest constitutes invasion of rights which may lawfully be resisted.

6. At common law, officer charged with preserving public peace might, without warrant, arrest person who committed breach of peace in his presence, and, in certain circumstances, might lawfully interfere to prevent breach of peace.

7. On question of charge of breach of peace by respondent who resisted officer arresting him without warrant, regardless of whether loitering of respondent shown did or did not amount to technical breach of peace, inasmuch as G. L. 6967 was passed as preventive measure and amounts to legislative declaration that loitering on streets endangers peace and tranquillity of community, arrest was lawful under rule permitting officer in certain circumstances to interfere to prevent breach of peace.

8. In prosecution for loitering on street and breach of peace in assaulting officer making arrest, claim that verdict on charge of loitering was defective is not available to respondent in Supreme Court, where he did not enumerate it as one of grounds of motion to set aside verdict or otherwise call it to attention of lower court.

9. In such prosecution, evidence offered by respondent regarding his conduct prior to arrest held inadmissible, since, though defendant may have been quiet and inoffensive, if he was idling away his time on street and did not move when ordered so to do by officer, he was guilty of loitering.

10. In such prosecution, suggestion by trial court that certain witness was behaving better than respondent's counsel though not approved, held not shown to have been prejudicial.

11. General exceptions to charge as given and to refusal of court to charge as requested, held not for consideration by Supreme Court.

COMPLAINT for loitering on street and breach of the peace in assaulting officer making arrest. Plea, not guilty. Trial by jury in Rutland city court, Harold I. O'Brien, City Judge, presiding. Verdict of guilty on both counts, judgment thereon, and sentence. After verdict and before judgment respondent moved for a new trial which motion was overruled. The respondent excepted. The opinion states the case.

Judgment affirmed. Let execution be done.

Elias Haddad for the respondent.

Jack A. Crowley, State's attorney, and F. C. Hinchey, grand juror, for the State.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

POWERS

Under a complaint in two counts, charging him with loitering on a street in the city of Rutland and with a breach of the peace by assaulting a policeman who was attempting to arrest him the respondent was convicted, and brings his case here by exceptions.

At the close of the State's evidence, the respondent moved to dismiss the complaint for failure of proof, and excepted when this motion was overruled. This exception will not avail him, for he proceeded with his defense by introducing evidence, and, not having renewed his motion at the close of the evidence, he waived the exception he had taken. State v. Williams, 94 Vt. 423, 443, 111 A. 701.

After verdict, the respondent moved to set aside the verdict basing his motion on ten grounds, all of which, except three which challenge the sufficiency of the evidence to support the conviction, were too general to require attention. The evidence for the State, disregarding the countervailing evidence, tended to show the following facts: Daniel J. Brown, a policeman, was walking his beat in the city of Rutland, on the evening of September 28, 1932. About nine o'clock, he found a group of men, which included the respondent, on West Street in that city. When the officer approached, this group moved away. Later in the evening, the policeman found another group which included the respondent, in front of a restaurant on Merchants Row, which runs at a right angle with West Street. The respondent stood in the midst of the group, and was talking with the others. The officer approached these men and ordered them to move on. All except the respondent obeyed. He refused. The officer started him along and urged him to go home. The respondent repeatedly told the officer not to push him, though in fact the officer did not touch him. They crossed Merchants Row, and the respondent started to go up West Street, but when the officer turned and went another way, the respondent came back and stood on the corner. Then the officer came back and ordered the respondent to go home. The respondent refused, saying that he wasn't going home. Thereupon, the officer ordered him to accompany him to the police station, and took hold of him and started to take him there. The respondent resisted by grabbing the officer's legs and they scuffled there until another policeman came to the rescue; then, the respondent was overpowered and taken to the police station. During the scuffle referred to, the policeman, Brown, struck the respondent with what was...