State v. Searles

• Decision Date: 05 May 1936
• Parties: STATE v. PAUL R. SEARLES
• Court: Vermont Supreme Court

184 A. 701

108 Vt. 236

STATE v. PAUL R. SEARLES

Supreme Court of Vermont

May 5, 1936

February Term, 1936.

Status of Grounds of Objection Not Urged Below---Criminal Law---Duty of State to Use All Available Witnesses---State Not to Be Prejudiced by Its Witnesses---Right of State to Interrogate Own Witness as to Contradictory Testimony at Inquest---P. L 5665, Taking Fish by Draining off Water---Admissibility of Expert Testimony as to Size of Fish to Be Found in Brook---P. L. 5646, Status of One Assisting in Violation of P. L 5665---P. L. 5590, Subd. XXII, Causing Fish to Die through Draining Pond as Taking of Fish---Requests to Charge---Status of Exception to Failure to Charge as Requested Taken by Number and Reference to Requests Filed---Evidence Held Sufficient to Justify Verdict.

1. Grounds of objection to the admission of evidence, not urged before the trial court, will not be considered by the Supreme Court.

2. In criminal prosecution, act of trial court in allowing State at trial of excepting respondent and two others, to interrogate, for purposes of impeachment, a witness who had been adjudged guilty and fined on his plea of nolo contendere to information charging identical offense, with respect to testimony of such witness at inquest regarding acts of the other two respondents, held without error, since State may impeach its own witness and since prejudice to excepting respondent was not shown.

3. It is the duty of the State in criminal prosecutions to produce and use all witnesses within reach of process, of whatever character, whose testimony will shed light upon the transaction under investigation and aid the jury in arriving at the truth, whether it makes for or against the accused, and therefore the State is not to be prejudiced by the character of the witnesses it calls, but may impeach its own witnesses, whether or not they are shown to be hostile.

4. In criminal prosecution for taking fish by drawing off water in violation of P. L. 5665, where respondent claimed on trial that he caught fish of specified size in brook below pond from which water was alleged to have been drawn, before water began to rise at point in question, admission of expert testimony that the brook under normal conditions at time of year in question did not have sufficient water to support a trout of that size, held without error, since such evidence tended to contradict evidence of respondent.

5. In such prosecution, where State's evidence tended to show that respondent assisted in draining a pond for the purpose of getting fish, held that respondent was a principal under the provisions of P. L. 5646.

6. In such prosecution, where State's evidence tended to show that respondent assisted in draining a pond for purpose of getting fish, held that fish dying when brook, into which pond drained, dried up, were taken by respondent within the provisions of P. L. 5590, subd. XXII, defining the word "take" as used in fish and game laws, and that evidence of the number of fish dying from such cause was properly admitted.

7. Exceptions to failure of trial court to charge in accordance with requests, taken only by number and referring court to requests on file, without pointing out the matter relied on and the claimed error in the charge as given, are too general to require consideration.

8. In criminal prosecution for taking fish by draining off water in violation of P. L. 5665, where State's evidence tended to show that respondent was present when a companion opened valve in pipe which drained artificial pond, that respondent later cleaned out the pipe when it became plugged, and caught fish with his hands in shallow brook below the dam, and that fish died when brook dried up, held that there was evidence sufficient to justify verdict of guilty and that motions to set aside verdict and in arrest of judgment were properly denied.

COMPLAINT charging taking of fish by draining off water in violation of P. L. 5665. Plea, not guilty. Trial by jury in Bennington municipal court, George A. Mathers, Municipal Judge, presiding. Verdict of guilty and judgment and sentence thereon. The respondent excepted. The opinion states the case.

Exceptions overruled. Let execution be done.

A. L. J. Crispe for the respondent.

Samuel H. Blackmer, State's attorney, for the State.

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

OPINION

SHERBURNE, J.

The respondent was convicted of taking 20 fish by drawing off water, an offense under P. L. 5665, and brings the case here upon exceptions.

The respondent and two others were severally informed against for identical offenses, and all were tried together. Although there was a sharp conflict in the evidence, that introduced by the State tended to show the following facts:

One William T. Herrick knew of a large trout in McKean's pond in Dorset and had told the three respondents about it. This pond is a small artificial one and is fed by a large spring. When full the pond is 6 to 7 feet deep at its deepest part. The overflow is over a shallow spillway and forms a small brook below.

There is a pipe in the bottom of the dam upon which is a valve located under the water above the dam. To open the valve it is necessary to use a long iron key rod. When this valve is opened the pond will empty into the brook below in about 1 1/2 hours. Herrick and the other three left their homes in Manchester at about 4:15 A.M. on Sunday, June 16, 1935, and drove together to this pond to fish in it and try to get the large trout. They arrived there at about 4:30 A.M. and immediately began fishing. After fishing for about two hours without success Herrick and respondent Searles walked to an uninhabited cottage about 500 feet away. There Herrick found an iron which he told Searles was the key to the dam. They then returned together to the pond, and while Searles was on the dam Herrick opened the valve. When the pond had partially emptied, Searles went down under the dam and cleaned out the pipe, which had become plugged so that the water would not come through. While the pond was emptying, the brook below was three to five times its normal size. Herrick closed the valve at about 8 A.M., and thereafter this brook dried up rapidly, but water remained in the...