State v. Shaw

• Decision Date: 09 February 1901
• Citation: 50 A. 863,73 Vt. 149
• Parties: STATE v. SHAW.
• Court: Vermont Supreme Court

50 A. 863

73 Vt. 149

STATE

v. SHAW.

Supreme Court of Vermont Windsor.

Feb. 9, 1901.

Exceptions from Windsor county court; Mimson, Judge.

Frank Shaw was convicted of murder in the first degree, and he excepted. Exceptions overruled.

It appeared that the respondent, Frank Shaw, and his father, Dustin Shaw, were confined in Windsor county jail on the 24th day of April, 1900, and for some time pre vious thereto, and that between dusk in th evening of the 23d of April and daylight of the 24th of April they left the said jail by; an upper window thereof. The evidence on the part of the state tended to show tha they were overtaken by Sheriff Spafford, Windsor county, and several assistants, the morning of April 27th, in a pasture Stockbridge, and were by the sheriff calle upon to surrender; that the respondent fire his rifle at George W. Hoffman, a deput of Sheriff Spafford and one of his said assise ants; that said Hoffman was struck by the shot fired, and died from the effects there the same day. After the shooting of Hoffman the respondent and his father again fled, and on trial the state gave in evidence the circumstances of the flight and pursuit of the respondent to the time of his arrest, which was made near Middlebury by Sheriff Chapman, of Addison county. The exceptions relied upon related to the ruling of the court in excusing a juryman, James E. Hurd, to the admission of evidence, to the denial of requests to charge, to the charge as given upon certain points, and to a ruling permitting certain exhibits to go to the jury room. The nature of these exceptions fully appears from the opinion.

Argued before TAFT, C. J., and TYLER, WATSON, and STAFFORD, JJ.

John G. Sargent, State's Atty., and William B. C. Stickney, for the State.

Gilbert A. Davis, for respondent.

WATSON, J. Exception 2 is without avail. The juror testified, in effect, that he had read statements of the facts of the case in the newspapers, from which he had formed and expressed an opinion concerning the respondent's guilt or innocence, and still had that opinion. He further testified that he had conscientious scruples regarding the infliction of capital punishment, and that such scruples would affect him in the performance of his duties as a juryman. The respondent being charged with murder in the first degree, and the law being such that capital punishment would be inflicted if he should be found guilty of that offense, it was due to the state that no person should be permitted to sit in the trial as a juror who could not, because of such scruples, determine the guilt or innocence of the respondent upon the evidence and law, without being hampered by a prejudice against the penalty fixed by law, —a prejudice which might be so strong as to prevent an agreement of murder in the first degree, regardless of the conclusiveness of the evidence tending so to show. The state, as well as a respondent, is entitled to a jury that will determine the case upon the law and the evidence, and a true verdict give, without being controlled by such scruples as tend to thwart justice. In excusing the juror, the discretion of the court was properly exercised, and no rights of the respondent were invaded or prejudiced thereby. Quinn's Adm'rs v. Halbert, 57 Vt. 178. The number of peremptory challenges to which the respondent was entitled is fixed by statute, and additional like challenges could not be had by him as a matter of law.

Exceptions 7, 8, and 12: Subject to respondent's exception, the state was permitted to show all that occurred after the homicide in respect to the flight and pursuit of the respondent to the time of his arrest near Middlebury. It is well settled that evidence tending to show flight of a respondent immediately after the commission of the allegedoffense with which he stands charged is admissible, and, unexplained, tends to show guilt. As the probative force of such testimony may be lessened or wholly taken away by evidence on the part of a respondent tending to explain such flight upon some theory other than that of guilt of the crime charged, it is proper to show the extent of the flight, together with the actions and the doings of the respondent that tend to characterize it, including resistance of known officers in attempting his arrest; for such actions and doings on the one hand may satisfactorily explain the flight upon the theory of innocence, while on the other hand they may place it beyond explanation upon any theory other than that of guilt. These exceptions were not well taken. Wills, Circ. Ev. 130-137; State v. Chase, 68 Vt 405, 35 Atl. 336.

Exceptions 9 and 10: The evidence showing the imprisonment of the respondent and his father in the jail at Woodstock, and their escape therefrom, was admissible as tending to show the reason why the sheriff of the county and his assistants were in pursuit of them at the time of the homicide, and as tending to show that the purpose of the pursuing party was to apprehend, and not to injure, them. It was also admissible upon the question of the respondent's intent when he fired the fatal shot. If he was confined in jail and escaped therefrom, and immediately upon such escape armed himself with a rifle to carry in his flight such evidence had a strong tendency to show that the respondent intended therewith to resist the officers of the law in case be was pursued by them, as he had reason to suppose he would be. State v. Taylor, 70 Vt. 1, 39 Atl. 447, 42 L. R. A. 673, 67 Am. St. Rep. 648.

Exception 11: The witness Charles Batchelder, a surveyor, was permitted to testify that after the homicide certain places were pointed out to him by Spafford as the places where Sheriff Spafford stood, where Hoffman stood, and where the respondent stood at the time of the homicide, and that the witness made measurements relative to them, and a plan showing the relative locations of those places, and their distances from each other. The plan was objected to by the respondent, because the places indicated thereon were places shown the surveyor by other persons. Spafford was improved by the state as a witness, and gave testimony of the surroundings and the positions of the respective persons at the time of the homicide, and testified also that later, at the place of the homicide, he pointed out these positions to the witness Batchelder: The latter was not present at the time of the homicide, and it became necessary for some one who was present and had knowledge thereof to point out to him the location of the respective persons, that he might make the proper measurements, and place the locations with accuracy upon his plan. This is the only way it could be done, and the plan was properly admitted in evidence.

Exception 15: The evidence of the state tended to show that when the sheriff and his assistant, Hoffman, came upon the escaped prisoners, the latter seized their rifles and brought them to their shoulders, the father aiming at the sheriff and the respondent at Hoffman; that thereupon the sheriff called upon them to surrender, and said to them, in substance, that there must be no shooting, to which the respondent's father answered in the same way, and lowered his rifle; that the respondent did not lower his rifle, but continued to hold it aimed at Hoffman, whereupon Hoffman said to the respondent, "Frank, lower that gun or I will bore you," repeating, "Drop that gun, I tell you;" that then the respondent fired and Hoffman fell. The respondent testified to seeing and recognizing Spafford before any shot was fired, to knowing that he was the sheriff, to understanding that he was there to arrest the respondent for breaking jail, to hearing the voice ordering him to drop his gun, but to not seeing Hoffman. The respondent's evidence tended to show that Hoffman had a rifle and fired it at the respondent —the bullet whizzing past his face, —who, in the excitement of the moment, unintentionally discharged his rifle, and Hoffman was hit. The state's evidence tended to show that, when Hoffman's rifle was picked up, it had not been discharged. This rifle had been borrowed by Hoffman of. one Dr. Stevens, to whom, some days later, it was returned. Improved by the respondent as a witness, Dr. Stevens testified, in substance, that the rifle was a magazine loader, and was loaded with 15 cartridges when he lent it to Hoffman, and that when it was returned to the witness the rifle was foul and bore evidence of having been fired several times. To meet this testimony, the state was permitted to show in rebuttal, subject to exception, that the rifle was in the hands of several different persons and left in different places between the time it was picked up, after the homicide, and the time when it was returned to its owner. This evidence tended to show that the rifle may have been foul when it was returned to Dr. Stevens, and yet not have been discharged by Hoffman. Therefore it was legally admissible in rebuttal.

Exception 16: The respondent took the stand and testified in his own behalf. In cross-examination, he was asked if he was in the town of Kingsbury, N. Y., in June, 1897, and, subject to exception, answered not to his knowledge, and that he did not know where the town of Kingsbury is. Not only was this question proper for the purpose of showing the whereabouts of the respondent, but the answer was harmless. The respondent was then asked whether on the 22d day of June, 1807, he was before Jesse Waitman, a justice of the peace, to answer to the charge of assault, and he answered thathe was. He was then asked, "And to that did you plead guilty?" The respondent objected to this question on the ground that it was immaterial. The witness was allowed to answer it, subject to exception, and answered that he did. The mode of the proof is not in question. The objection was confined to its materiality. The evidence had a material bearing on the respondent's present character and moral principles as a witness, and...