State v. Silas Lapan

• Decision Date: 24 May 1928
• Parties: STATE v. SILAS LAPAN
• Court: Vermont Supreme Court

141 A. 686

101 Vt. 124

STATE v. SILAS LAPAN

Supreme Court of Vermont

May 24, 1928

January Term, 1928.

Opinion filed May 4, 1928.

Criminal Law-Witnesses-Discretion of Court as to Extent of Cross-examination-Opinion of Witness on Immaterial Matter-Admissibility of Expert's Testimony Re Blood Spots-What Excepting Party Must Show as to Evidence Admitted or Excluded under Exceptions-When Error in Admission or Exclusion of Evidence Cured-Admissibility Determined by Its Legitimacy When Received-Transcript Controlling in Supreme Court-Judicial Notice-Finger Print Identification---Exceptions Not Briefed---Impeachment of Witness---Collateral Issue---Limitation of Cross-examination on Collateral Matter---Testimony of Expert as To Finding Palm Prints on Lamp---Opinion of Expert as to Identity of Palm Prints---Admissibility of Enlarged Photographs of Palm Prints---Statement of Expert Witness Before Cross-examination That He Had Opinion as to Identity of Palm Prints---Sufficiency of Cross-examination To Preserve Respondent's Rights---Necessity That Exception Apprise Trial Court of Claimed Error---General Objection---Experiment in Presence of Jury---Competency of Expert Witness---Discretion of Court---Evidence To Meet Attack on Credibility of Witness Made by Showing Plea of Guilty to Criminal Charge---Evidence Involving Collateral Issue Inadmissible To Defend Credibility---Evidence as to Personal Habit or Practice---Argument of Counsel---Harmless Error---Submitting Question to Jury Not Supported by Evidence---Instruction as to Basis Upon Which Respondent Could Be Found Guilty of Murder---Necessity for Stating Reason Why Instruction Claimed To Be Erroneous---Instructions as to No Evidence of Promise of Immunity---Sufficiency of Instructions Relating To Requirements Before Respondent Could Be Found Guilty---Refusal of Court To Inform Jury as to Penalty for Manslaughter---G. L. 6801.

1. In prosecution for murder, where witness for State had testified in direct examination that upon his arrival at scene of crime he could see "liquid" blood on floor, which statement was reiterated upon cross-examination, held that refusal of court to permit further repetition of such testimony on cross-examination was not error, its allowance or disallowance being within trial court's discretion.

2. In such prosecution, exclusion of question asked on cross-examination as to whether witness thought blood on floor at scene of crime would be liquid blood after it had been there an hour, held not error, witness' opinion being wholly immaterial under the state of the testimony.

3. In such prosecution, where it was shown that respondent and his brother were on the premises when murder was committed leaving there in an automobile, and that subsequently spots found on floor board of automobile on side where respondent had sat were tested by a chemist who testified that he found them to be blood, held that court did not err in overruling motion to strike out testimony about spots, although it appeared on cross-examination that test did not show whether spots were human or animal blood, and also subsequently appeared that shortly before murder a dog with a cut foot had ridden in automobile, floor board not being admitted when offered as evidence, and nothing being claimed for evidence admitted relating to spots.

4. Where evidence is admitted subject to exception, excepting party, in order to secure a reversal, must make it appear that in the then present aspect of the case it was inadmissible, and when evidence is excluded, to secure a reversal, excepting party must show that in the then present aspect of the case it was admissible.

5. Subsequent events during progress of trial may cure error either in admission or exclusion of evidence.

6. Admission of evidence, legitimate when received, does not become erroneous simply because afterwards in the course of trial, such evidence becomes immaterial.

7. In prosecution for murder, admission of testimony of chemist indicating that some attempt had been made to remove blood spots on foot board of automobile in which respondent rode from scene of crime, being proper at time testimony was offered, was not rendered erroneous because it later appeared on cross-examination that test of spots made by chemist did not show whether spots were human or animal blood, nor because it subsequently appeared that a dog with a cut foot had ridden in automobide shortly before murder.

8. Supreme Court, sitting in error, cannot ignore transcript even in matter of punctuation, but must take it as it is.

9. In prosecution for murder, statement of trial court that system of finger print identification is a generally recognized science, held not error because there was no evidence as to the state of the science, since subject-matter was one of which court could take judicial notice.

10. Courts take judicial notice that system of finger print identification rests upon a substantial scientific basis, and that it is in general use in criminal trials.

11. Courts take judicial notice that imprint of palm side of human hand, when fairly taken, presents reliable individual, and unchanging characteristics of the papillary ridges, and that when these are correctly read and interpreted by one skilled in that science, they afford valuable evidence on questions of identity.

12. Exception not briefed will not be considered by Supreme Court.

13. It is a salutary and well-established rule that a witness cannot be impeached on a collateral issue; issues being "collateral" which are not relevant to the issue being tried, and relevancy depending upon whether matter in question would be admissible as evidence on that issue.

14. Limitation of cross-examination of witness by respondent as to alleged finger prints on blood-stained lamp found by witness at scene of crime, and refusal to permit jury to examine lamp with magnifying glass to determine whether prints were then visible, held without error, since subject-matter was gone into collaterally on cross-examination, and witness could not be impeached by showing fact to be otherwise than as he testified.

15. In prosecution for murder, testimony of expert finger print reader and photographer that he had found a print on a blood-stained lamp taken from scene of crime, and had made an enlargement thereof, to which respondent objected on ground that lamp would show for itself, and excepted to witness' use of a magnifier, held properly admitted, there being no evidence that witness had found print by use of magnifier but merely that he had made an enlarged photograph of print found.

16. In prosecution for murder, where State had introduced evidence tending to show that photographs and enlargements of print found on blood-stained lamp taken from scene of crime, and of respondent's palm prints, were correct representations of the prints, testimony of expert finger print reader and photographer that in his opinion prints were made by the same hand was admissible over objection that there was no evidence showing that photographs had been properly taken.

17. Under such circumstances, after State had shown that photographs and enlargements of print found on lamp and of respondent's palm prints were correct representations of prints, question of their admissibility became one for court.

18. Fact that expert witness was allowed, before cross-examination, to say that he had an opinion as to whether enlarged photographs of print found on lamp and of print of respondent's palm were made by the same hand, without intimating what such opinion was, held not prejudicial.

19. Extent of cross-examination permitted by court of expert finger print reader and photographer improved as witness for State, held sufficient to secure respondent's rights and to protect his interests.

20. Supreme Court will consider only those questions brought up by such an exception as reasonably indicates to trial court ground on which excepting party relies in asking for ruling for which he contends.

21. A general objection to offered evidence affords no basis for a valid exception to its admission.

22. Refusal of trial court to permit expert finger print reader and photographer to make experiment before jury of taking print of respondent's finger in kerosene oil, sought by cross-examiner to discredit witness, held within court's discretion, its rejection being further justified by dissimilarity of conditions.

23. Competency of witness as an expert is addressed to court's discretion, and is not reviewable.

24. As a general rule, when a witness' credibility is assailed, he may meet the attack by giving evidence to repel the inference of unreliability and to establish his good character in that respect, and when he is discredited by showing that he pleaded guilty to a criminal charge he may show circumstances and conditions under which plea was entered.

25. In prosecution for murder, in which respondent was witness on his own behalf, and State was permitted to show that he had been convicted of the crime of a breach of the peace, held that trial court did not err in excluding evidence offered by respondent to meet such evidence, to the effect that his offense was of a technical and trivial character, since its allowance involved a collateral issue consideration of which might tend to confuse the jury and divert their minds from the real issue before them.

26. Evidence of a personal habit is often of probative value and is frequently admitted, but should not be admitted in absence of special relevancy and forensic necessity.

27. Ordinarily, it cannot be proved that a person did a particular thing on one occasion by showing that he did it at another time or times.

28. In prosecution for murder, in which doctor...