State v. Rounds

• Decision Date: 04 May 1932
• Citation: 160 A. 249
• Parties: STATE v. ROUNDS.
• Court: Vermont Supreme Court

160 A. 249

STATE

v. ROUNDS.

Supreme Court of Vermont.

May 4, 1932.

Exceptions from Chittenden County Court; Allen R. Sturtevant, Judge.

Roy Rounds was convicted of involuntary manslaughter, and he brings exceptions.

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

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

Lawrence c. Jones, Atty. Gen., for the State.

M. G. Leary and Guy M. Page, both of Burlington, for respondent.

GRAHAM, J.

On June 20, 1930, the respondent and one Allen Thompson engaged in a fist fight at the entrance to the barn on the home premises of the respondent in Jericho. The blows struck by respondent caused severe injuries to Thompson's face, Including the fracture of the left jaw and the fracture of several other facial bones. The next day Thompson was taken to the Fanny Allen Hospital in Winooski for treatment, and he remained there until he died on July 16, 1930. Early in the morning of July 15th, Thompson was found lying upon the floor of his room in the hospital, and later the same day discovery was first made that three of his ribs on the left side were fractured. One of the fractured ribs punctured the pleural cavity which contained streptococcic pus and caused the bacteria to enter the blood stream. The terminal cause of death was the pus in the pleural cavity admitted to the blood by the broken rib puncturing the cavity. The respondent was convicted of involuntary manslaughter. By motion for a directed verdict, and also by motion to set the verdict aside, he challenges the sufficiency of the evidence to support the verdict on the following grounds: (1) That, since the evidence adduced by the state showed that respondent was first assaulted, there was not in the case sufficient evidence to warrant the jury in finding beyond a reasonable doubt that the acts of the respondent were not done in self-defense; and (2) that the evidence does not justify the finding and conclusion of the jury that the death of Thompson resulted from any act of the respondent, and especially from any unjustified blow by the respondent; but that the evidence showed that his death was produced by an intervening efficient cause due to accident and mischance. Upon the overruling of these motions, the questions were saved for review by proper exceptions.

In the consideration of these motions, the respective functions of the jury and the court must be kept in mind and adhered to. In this respect the rule is the same in criminal as in civil cases. The evidence must be taken in the most favorable light for the state; and, if there is some evidence tending to support or justify the verdict, it is for the jury to construe it, and to determine its weight. State v. Pierce, 103 Vt. 383, 386, 154 A. 675. A motion to set aside the verdict on the ground that it is contrary to the evidence is addressed to the sound discretion of the trial court, and the action of that court cannot be disturbed, except for abuse of discretion; but when all the evidence is before the court. and the exception is taken on the ground that the verdict is wholly unsupported by the evidence, the rule as to discretion does not apply and the action of the trial court is reviewable here. Wellman, Adm'r, v. Wales, 97 Vt. 245, 248, 249, 122 A. 659 and cases there cited. When the facts are such that reasonable men can fairly draw but one conclusion, or where the evidence is undisputed or of such character that the court in the exercise of a sound judicial discretion would be compelled to set aside a verdict returned in opposition to it, the court should, on motion, withdraw the case from the jury. Spaulding v. Mut Life Ins. Co., 94 Vt. 52, 56, 109 A. 22, 29; Neill v. Ward, 103 Vt 117, 158, 159, 153 A. 219. For obvious reasons, this rule cannot apply against a respondent charged with crime, but it should have full application in his favor. Where the evidence is so defective that a verdict of guilty based upon it cannot be sustained, a verdict of not guilty should be directed. State v. Davis, 116 Me. 260, 101 A. 208; State v. Donahue, 125 Me. 516, 133 A. 433. When the evidence only raises a mere suspicion of the guilt of the accused, or leaves it uncertain or dependent on conjecture, it is insufficient to warrant a conviction, and tin" court should direct a verdict of acquittal when requested by the respondent. High v. State, 2 Okl. Cr. 161, 101 P. 115, 28 L. R. A. (N. S.) 102; Copeland v. State, 23 Ala. App. 91, 121 So. 445. See also, People v. Bennett, 49 N. Y. 137; People v. Ledwon, 153 N. Y. 10, 46 N. E. 1046.

We will consider the grounds of the respondent's motion for a directed verdict in the order stated: First, whether the respondent's acts were in self-defense. The respondent was road commissioner of the town of Jericho, and Thompson was employed by him to work on the town roads. Late in the forenoon of June 20th, work for the town was stopped on account of weather conditions, and the respondent hired Thompson to work for him on his barn. After the noon meal, Thompson, who had been drinking and was somewhat, under the influence of intoxicating liquor, did not return to his work. The respondent saw him in the house and asked him if he was not going to work that afternoon, and Thompson replied that he would when "he got damn good and ready." Respondent discharged Thompson and hired another man to take his place. While respondent was on his way to his barn, Thompson came from the house toward him, saying he was going to the barn to work. Respondent told him to go away and not bother the help. As respondent reached the entrance to the barn, Thompson, who was following him, said: "You son of a —— I will show you that you cannot tell me when to go home." The only direct evidence of what occurred immediately following this remark came from the respondent. He testified that at this threat he turned just as Thompson was striking towards his head; that he dodged and the blow hit his shoulder; that respondent then struck Thompson in the face, and Thompson struck back three or four, times, hitting respondent's hand raised as a guard; that he struck Thompson only three blows, all of them in the face; that the last blow hit Thompson in the mouth, which knocked him down, and he went right up against the corner of the barn door.

Thompson was a drinking man, and was particularly quarrelsome when under the influence of intoxicating liquor. The respondent had previously discharged him for drinking while at his work. For these acts Thompson had made threats of violence against the respondent, and the respondent had heard of these threats. But respondent did not know that Thompson had been drinking the day of the assault.

In the circumstances it is clear, and the state admits, that the respondent had the right to use sufficient force to repel the attack made upon him by Thompson. The rule as to the right to use force to repel an assault and battery is that the assailed may beat his assailant so far as to make him desist; but he cannot inflict great bodily harm or take the life of the assailant, unless he reasonably apprehends death or great bodily harm to himself, and then he may not do so if he has other means of avoiding the assault that appear to him at the time as sufficient and available, and which are in fact sufficient and available. State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200; State v. Roberts, 63 Vt. 139, 21 A. 424; State v. Tubbs, 101 Vt. 5, 23, 139 A. 769. Mr. Bishop, in his work on Criminal Law, Ninth Edition, vol. 1, § 867, says: "One cannot lawfully kill another who comes merely to beat him, but may repel the assault by beating till the aggressor desists." But, says Mr. Bishop (vol. 1, § 865): "If one who is assaulted (there must be an overt act, rendering the danger imminent), being himself without fault in bringing on the difficulty, reasonably apprehends death or great bodily harm to himself unless he kills the assailant, the killing is justifiable." The amount of force which one may justifiably use in self-defense is such as reasonably appears to him to be necessary under all the circumstances in the case, and, whether he is justified in the particular occasion, depends upon whether the jury find that it reasonably appeared to him that it was necessary to use the force which he did use. McQuiggan v. Ladd. 79 Vt. 90, 105, 64 A. 503, 14 L. R. A. (N. S.) 689. In Russ v. Good, 90 Vt. 236, 239, 97 A. 987, 988, this court says: "When one is assailed by another, and from the nature and circumstances of the attack, viewed in the light of known threats or hostile conduct made or exhibited by the assailant, and his known character for violence, he has reasonable ground to believe and does believe, that he is in danger of bodily harm, he may be justified in striking his assailant without waiting to be actually struck himself. And this rule is equally applicable whether the question is how much force he is justified in using, or is he justified in using any force, in his defense."

It is true, as the respondent argues, that, since the evidence adduced by the state showed that respondent was first assaulted, the burden was upon the state to prove beyond a reasonable doubt that the acts of the respondent were not done in self-defense. State v. Patterson, supra. Therefore, the precise question now before us is whether there is in the case any evidence tending to show that the force used by the respondent was excessive, so as to make it a jury question.

While the respondent says that he struck only three blows, and that Thompson was pressing the attack to the third blow, yet the state is not bound by his version of the encounter, if there is evidence of facts and circumstances from which opposing inferences may fairly and reasonably be drawn. The state argues that the evidence of the number and character of the injuries received by Thompson from blows struck by respondent is sufficient to...