State v. Reynolds

• Decision Date: 13 February 1922
• Citation: 116 A. 116,96 Vt. 37
• Parties: STATE v. HARRY REYNOLDS
• Court: Vermont Supreme Court

116 A. 116

96 Vt. 37

STATE v. HARRY REYNOLDS

Supreme Court of Vermont

February 13, 1922

January Term, 1922.

INFORMATION for statutory rape.Plea, not guilty.Trial by jury, June Term, 1921, Bennington County, Moulton, J presiding.The respondent excepted.After the case was entered in Supreme Court, upon request of respondent, and leave therefor being granted, he filed petition for a new trial on the ground of newly discovered evidence.Heard in Supreme Court on this petition and the evidence submitted in support and opposition.Petition dismissed.Exceptions overruled.

Petition dismissed.

The respondent took some exceptions during the trial of the case below, but having failed to brief them they are treated as waived.See cases cited above.

Judgment that there is no error in the proceedings and that the respondent takes nothing by his exceptions.Let execution be done.

Reuben Levin and C. V. Poulin for respondent.

G A. Mathers, State's Attorney, for the State.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

The respondent was convicted of statutory rape and brings the case here on exceptions.After the case was entered in this Court, he had leave to, and did, file a petition for a new trial on the ground of newly discovered evidence.This evidence relates solely to the age of the prosecutrix, Florence Gilbar, on October 24, 1920, the date of the alleged crime.The evidence relied on to support the petition is to be found in the affidavits of Ida Gilbar and Mary Gilbar, attached to the petition, and that submitted in opposition to the petition appears in the depositions of Collins M. Graves and George A. Mathers, and certain exhibits.

The exhibits, which are a copy of the record of the birth of Florence, a copy of the record of the birth of a younger sister, Elizabeth, a copy of the record of a deed of land in Sunderland from Mary Gilbar to Levi Gilbar and a letter from Benj.J.Hill, town clerk of Sunderland, to Geo.A Mathers were received subject to petitioner's exceptions, but these exceptions are not briefed and, therefore, are not considered.Williams Mfg. Co. v. Insurance Co. of North America, 93 Vt. 161, 106 A. 657;Powers v. Trustees of Caledonia County Grammar School, 93 Vt. 220, 106 A. 836;Hobbs & Son v. Grand Trunk Ry. Co., 93 Vt. 392, 108 A. 199;Mason v. Sault, 93 Vt. 412, 108 A. 267;EssexStorage Electric Co. v. Victory Lumber Co., 93 Vt. 437, 108 A. 426;In re Chisholm's Will, 93 Vt. 453, 108 A. 393;Lamoille County Savings Bank & Trust Co. v. Hanson, 93 Vt. 486, 108 A. 396; and many earlier cases.Besides, the contents of these exhibits, except the copy of the record of the deed, were read into the depositions, without objection, before the exhibits were offered in evidence, and no objection is here made to the use of those parts of the depositions.In the circumstances, the contents of the exhibits are, unquestionably, before us for consideration.

The determinative question, then, is whether the newly discovered evidence is sufficiently controlling or persuasive to make it probable that a new trial would produce a different result.If it is not, the petition must be dismissed.Gilfillan v. Gilfillan's Estate, 90 Vt. 94, 96 A. 704;Usher v. Allen, 89 Vt. 545, 95 A. 809.

Ida Gilbar, one of the affiants, is the mother of Florence.She was called by the State on the trial below and testified that Florence was born at Sunderland, August 12, 1905; that her husband, Levi Gilbar, made out a birth certificate at the time but she did not know whether he filed it with the town clerk; that three or four months after the birth of this child witness had an attack of gall-stones and was attended by Dr. Kelly of Manchester.Dr. Kelly was called by the State on that trial and testified that he located in Manchester in January, 1905, and that sometime during the following year (he was then unable to fix the date)he treated Ida Gilbar for gall-stones.A Mrs. Peterson, called by the respondent on that trial, testified, in substance, that she had a conversation with Florence early in the summer of 1920 in which Florence told her that she would be sixteen years old the following August....