State v. Roberts
| Decision Date | 06 January 1891 |
| Citation | 21 A. 424,63 Vt. 139 |
| Parties | STATE v. BYRON U. ROBERTS |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1890
This disposes of all the questions made by the counsel and our judgment is, that there is no error in the proceedings and the respondent takes nothing by his exceptions.
W B. Sheldon, for the respondent.
Munson J., having been of counsel for the acquitted respondent, did not sit.
1. The first exception insisted upon, is the one taken to the admission in evidence of the stake and pole in connection with the testimony of Knapp and August Walder. August was present at the homicide; he testified that the deceased was struck with a stake and two poles, and that he pointed them out to the witness, Knapp the latter identified those in court as two of those so pointed out to him. It is always proper to put in evidence the instruments which the testimony tends to show a crime was committed with, and in so doing on the trial below, there was no error.
2. The respondents offered to show that after the affray, and after they had gone away sixty or seventy rods, they requested one Mallory to go to the relief of the deceased, as tending to prove that they acted in self-defense. They were undoubtedly aware from the serious nature of their assault upon him, that he was dangerously, if not mortally wounded, and considering the hazardous situation they were in, whatever the character of their assault may have been, the fact that they evinced some anxiety upon his account, and a desire to relieve him by sending him aid, had no tendency to show they acted in self-defense instead of aggressively. Generally one would be full as likely to send relief in the latter case as in the former, and perhaps more so. The offered testimony was immaterial.
3. There were five surgeons present either at an operation performed upon the deceased a few days before his death, or at the autopsy, who were within reach of process. The facts described upon both occasions were material. When the State rested its case but three of the surgeons had been improved as witnesses. The respondent then moved that the State call the two surgeons who had not been examined. This motion was denied and the respondent excepted. The two were subsequently called by the respondent and examined. He now insists that the denial of his motion was error and relies upon the case of State v Magoon, 50 Vt. 333. Some courts deem that a prosecuting officer ought in murder and other like causes, to call as witnesses all who were present at the transaction, whatever be the nature of their testimony; others think it properly within his discretion to call such, and such only, as he thinks best. In the case cited, the court said, "But in criminal prosecutions, the State is bound to produce and use all witnesses within reach of its process, of whatever character, whose testimony will throw light upon and characterize the transaction under inquiry, whether it tends to convict or acquit the respondent." The court did not hold that it would be reversible error if all such witnesses were not called. Conceding that it is the duty of a State's attorney to call all the witnesses present at a transaction, it by no means follows that it is a legal right of a respondent that he be compelled to, or, in case of conviction, the verdict vitiated if he do not call them. The conduct of a trial in certain respects must, to a great extent, be left within the discretion of a State's attorney; the testimony might be cumulative; the character of a witness might be so disreputable that it would be a farce to have him sworn; the State's attorney might err in judging of the witness; who is to judge whether the testimony of the alleged witness would throw light upon and characterize the transaction? What was said by the court in the case cited, refers to the duty of the State's attorney in the conduct of cases, in its general sense rather than to any right of the respondent in respect of the matter. It is the duty of the State's attorney, unless disqualified, to prosecute all criminals; he may be guilty of gross misconduct in the prosecution of one; he may be incompetent and the court compelled to appoint a special attorney to prosecute. It is absurd to claim that for a violation of his duty by the State's attorney in the conduct of a trial, the verdict should be set aside, unless some legal right of the respondent is denied. We hold that the action of the court was correct and did not deprive the respondent of any right to which he was entitled under the law.
4. The respondent presented requests to charge, several of which he insists were not complied with, viz: that the crime was several, and that one respondent might be acquitted and the jury convict or disagree as to the other. This is undoubted law, needs the citation of no authorities, and was fully complied with by the court when it said, "You may find one respondent guilty of one of these degrees of crime, and the other of another degree. You may also find one respondent guilty of one of these crimes, and the other not guilty of any crime, as the evidence in the case warrants.
If you find one of the respondents innocent of all crime under the indictment and the other one guilty of manslaughter, murder in the second degree, or murder in the first degree, you will say in your verdict which one, by name, is innocent, and which one, by name, is guilty, and say of which crime he is guilty.
If you find one of the respondents guilty of the crime of manslaughter, murder in the second degree, or murder in the first degree, and the other respondent guilty of another of said crimes, you will say in your verdict of which of the crimes each respondent, by name, is guilty.
If you find that both respondents are guilty of the same crime you will say of what crime you find them guilty."
Had the court failed to instruct them as requested, that no harm was done the respondent by the omission, is apparent from the fact that one respondent was acquitted and one convicted.
5. The respondents claim that they acted in self-defense, and requests 6, 7 and 8 had...
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