State v. Raymond Parker

• Decision Date: 18 October 1932
• Citation: State v. Raymond Parker, 162 A. 696, 104 Vt. 494 (Vt. 1932)
• Parties: STATE v. RAYMOND PARKER
• Court: Vermont Supreme Court

162 A. 696

104 Vt. 494

STATE v. RAYMOND PARKER

Supreme Court of Vermont

October 18, 1932

May Term, 1932.

Jury---Competency of Juror---Insufficiency of Exception To Raise Question Whether Court Should Have Exercised Discretion To Excuse Juror---Criminal Law---Evidence Procured by Unlawful Search---State's Attorney Not Required To State Object of Interrogatory in Cross-examination---Intoxicating Liquors---Evidence as to Money in Possession of Witness Where Inference Was Warranted That He Intended To Purchase Liquor from Respondent---Harmless Error---Instructions to Jury---Failure To Give Instructions Subject-Matter of Which Had Already Been Covered---Argument of Counsel---Effect of Permitting Exception to Argument Not Withdrawn from Jury---Prejudicial Effect of Argument as Dependent on Circumstances of Particular Case---Burden of Showing Prejudicial Error---Error in Argument Equivalent to Expression of Personal Belief of State's Attorney in Respondent's Guilt---Trifling Misquotation from Evidence in Argument---Arguments Held Not Unwarranted---Rule as to Comment on Failure To Produce Witness---Presumptions---Argument Not Supported by Evidence and Appealing to Prejudice or Passion of Jury as Reversible Error.

1.Question of competency of juryman is matter of law to be determined by trial court upon evidence adduced upon preliminary examination.

2.Exception to ruling that juryman was legally competent, held not to raise question whether court should have exercised its discretion and excused him because of his previous association with sheriff as deputy in enforcement of prohibition.

3.Cross-examination of witness for respondent, in prosecution for unlawful possession of intoxicating liquor, as to amount of money in his pocket on night when he was accompanying respondent, held not rendered incompetent by fact that State's knowledge as to contents of witness' pockets was obtained by unlawful search.

4.State's attorney in cross-examining witness for respondent, when objection was made as to its materiality was not bound to state object in putting interrogatory.

5.In prosecution for unlawful possession of intoxicating liquor permitting witness to be cross-examined as to sum of money in his possession on night when he was accompanying respondent over objection of immateriality, held without error, where enough appeared to warrant inference that State expected to show witness was there for purpose of purchasing liquor from respondent.

6.In such prosecution, permitting cross-examination of respondent as to whether he was indebted to certain individual for repairs to automobile, not shown to have been automobile in which liquor was found, which had been kept in barn adjoining garage operated by such individual, to which affirmative answer was made, but subject pursued no further, held harmless, prejudice not being made affirmatively to appear.

7.Where court instructed jury that possession of liquor by respondent meant that it was within his control or under his care or management, exception to failure of court to charge that mere knowledge of presence or location of liquor at certain farm did not constitute possession, held unavailing since it would have added nothing to charge as given.

8.Permitting exception to argument of counsel, without commenting upon impropriety and warning jury to disregard it, amounts to ruling that argument was proper.

9.Whether improper argument is of such nature as to require reversal depends upon attending circumstances of particular case.

10.To reverse case for improper argument, prejudice to excepting party thereby must always affirmatively appear.

11.Burden of showing impropriety of argument is upon excepting party.

12.Argument of State's attorney that he naturally believed that complaint was warranted and that he thought he was justified in issuing it, which was equivalent to expression of personal belief of State's attorney in respondent's guilt, being highly improper, action of court in permitting statement to go unrebuked and not withdrawn, held prejudicial error.

13.In prosecution for unlawful possession of intoxicating liquor, where State's attorney in argument stated that respondent twice negotiated on streets of certain village for storage of liquor, while evidence showed two conversations upon subject but only one in village named, held that misquotation of testimony was too trifling to afford reasonable ground of objection.

14.In such prosecution, where it appeared that before trial witness for State had made statement to another at variance with his testimony, and latter person was called by respondent to impeach such witness, held that argument of State's attorney to effect that, if such witness had continued to lie impeaching witness would not have testified, did not constitute reversible error.

15.In such prosecution, argument charging respondent with being member of gang held not unsupported by evidence, where testimony tended to show others were involved and assisted in concealment of liquor, and that respondent made arrangements for it.

16.Argument of State's attorney, in explanation of previous inconsistent statements of witness, to effect that witness feared respondent, held not unwarranted, in view of evidence.

17.Where witness is equally available to both parties, no inference unfavorable to respondent can be drawn from his failure to produce him, but such inference may only be drawn against party when evidence is peculiarly within his knowledge.

18.Burden is on excepting party to show reversible error, and every presumption, not positively inconsistent with record, must be made in favor of ruling below.

19.Supreme Court cannot assume, for purpose of finding error, in absence of any showing upon matter, that witness was equally available to both parties, or that purport of testimony he would give, and his then present whereabouts, were not peculiarly within knowledge of respondent.

20.Argument of State's attorney, referring to respondent as chief of lawless gang whose business was rum-running, commenting upon their lawless acts and disregard for children or property of others, stating that no social gathering could be had unless some lawless act were perpetrated, and that respondent had been put on trial because people demanded it, held prejudicial as unsupported by evidence, transcending limits of legitimate advocacy, and constituting appeal to prejudice and passion of jury.

COMPLAINT charging respondent with unlawful possession of intoxicating liquor.Plea, not guilty.Trial by jury in Caledonia county municipal court, Nathan A. Norton, Municipal Judge.Verdict of guilty, judgment thereon, and sentence.The respondent excepted.The opinion states the case.

Judgment reversed, conviction and sentence set aside, and cause remanded.

Searles & Graves for the respondent.

Oscar L. Shepard, State's attorney, for the State.

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

OPINION

MOULTON

The respondent is charged with the unlawful possession of intoxicating liquor, under the provisions of G. L. 6558as amended bysection 21, No. 204, Acts 1921.He was found guilty and the case is here upon his exceptions.

The liquor in question was found upon a search conducted in pursuance to a warrant, in an automobile, hidden in the woods upon the farm of Earl Blodgett, in Wheelock.The automobile bore New Hampshire license plates, and was identified by the engine number as one that the respondent had purchased, some two months before, from a dealer in Colebrook, New Hampshire, and of which the respondent had acknowledged the ownership shortly after the purchase.

The first exception briefed relates to the ruling of the court as to the qualification of A. O. Berry, one of the jurymen.Mr. Berry was a deputy sheriff, and had previously been engaged in assisting the sheriff in the enforcement of the prohibitory law.He had no connection with the case on trial, and had never talked with the sheriff concerning the respondent.He was asked, on voir dire, whether it would be embarrassing to him if the methods of the sheriff's department in obtaining evidence should be called in question in the case, and replied that it might possibly be so, although he did not think that he would be prejudiced thereby.He also said that he felt that he could decide the case according to the evidence, regardless of his position, and that he would weigh the evidence fairly, and would not convict without regard to the evidence.The court expressed the opinion that he was qualified, whereupon counsel for the respondent requested the court to exercise its discretion in the matter, and the ruling was made that, as a matter of law, the juryman was qualified to sit.The respondent excepted to the ruling, and the court then remarked, in effect, that if the matter were one of discretion, the result would be the same.At the time, the respondent had exhausted his peremptory challenges.

It is argued that the question of the competency of a juryman is to be decided in the discretion of the trial court.But this is not so; the point is to be decided as a matter of law because the law prescribes the necessary qualification, and the determination of it is left to the court, upon the evidence adduced upon the preliminary examination.State v. Meaker,54 Vt. 112, 125.No question is made as to the legal competency of Mr. Berry, for the argument is only that the court might have excused him, in its discretion, because of his previous association, with the sheriff.No doubt a wide discretion exists in determining whether a qualified juryman shall participate in a trial, when some reason for excusing him such as age, ill health, the pressure of personal...