State v. Stacy

Decision Date04 May 1932
Citation160 A. 257
CourtVermont Supreme Court
PartiesSTATE v. STACY.

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Exceptions from Washington County Court; John C. Sherburne, Judge.

Bert Stacy was convicted of murder in the first degree, and he brings exceptions. No error.

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

W. W. La Point and Gelsi Monti, both of Barre, for respondent.

Lawrence C. Jones, Atty. Gen., and C. o. Granai, State's Atty., of Barre, for the State.


The respondent has brought this case before us on exceptions following his conviction of the crime of murder in the first degree. The victim was his wife, Ruth Stacy.

The first question relates to an exception taken to the denial of a motion for change of venue. The motion was addressed to the county court at the term then in session, and during which the case was marked for trial. It was based upon two newspaper articles, appearing in different publications a few days prior to the commencement of the trial, in each of which it was stated that the respondent had offered to plead guilty to murder in the second degree, but that the state had refused to accept the plea. It was alleged that the two newspapers had a large circulation in the county, and that it would be impossible to select twelve jurymen who had no knowledge of the contents of the articles, and that, in order to qualify them by interrogatories, respondent's counsel would find it necessary specifically to refer to the articles.

It has been said that at common law, a court possesses the inherent power to change the venue of a cause pending before it, when it clearly appears that a fair and impartial trial cannot be had in the county where the venue is laid, and statutes which specifically confer this power are merely declaratory of the common law. Crocker v. Justices of Superior Court, 208 Mass. 162, 94 N. E. 369, 375, et seq., 21 Ann. Cas. 1061. This rule is, no doubt, supported by the weight of authority, but a different doctrine obtains in this jurisdiction. In State v. Howard, 31 Vt. 414, 415, a petition for a change of venue of a trial upon an indictment for manslaughter was brought on the ground that a fair trial could not be obtained because of the excitement and disordered public opinion in the county regarding the case. It was held that neither the Supreme Court nor the county court had jurisdiction to grant the petition since the statute provided, in general terms, that a criminal case should be tried in the county where the offense was charged to have been committed and that it would require the interference of the Legislature in order that there might be a change of the place of trial to another county. The matter is now regulated by statute. By G. L. 2523 it is provided that: "When a person is under information or indictment for an offense punishable by death or imprisonment in the state prison, the respondent or the state's attorney of the county where the prosecution is pending, may apply to a superior judge, petitioning that the trial of such respondent be removed to and had in another county." And by G. L. 2525, "the judge to whom the application is preferred, may, in his discretion, by an order in writing, direct that the trial of such respondent be removed to and had in some other county named."

Thus, the county court had no power to grant the motion. A superior judge presided, but there were two assistant judges with him, and these three constituted the court. The assistant judges are not a part of the tribunal erected by the statute with authority to hear and grant applications of this nature. For this reason, if for no other, the motion was properly denied.

At common law, a motion for change of venue was not to be granted on mere suggestion, or unless the reason were fully established. Crocker v. Justices of Superior Court, supra, page 377 of 94 N. E., 208 Mass. 162. As we have seen, by G. L. 2525, the determination of the matter rests in the discretion of the superior judge to whom the application is made. If we suppose that the motion was treated by the superior judge who presided at the term as being presented to him as such, under the statute (G. L. 2523), and not to the county court, no error appears. The ruling, being discretionary, is not to be revised unless an abuse of discretion is shown. Pierce v. Mitchell, 87 Vt. 538, 540, 90 A. 577. The contrary not appearing, we must presume that the discretion was exercised, since the law required it. Murray v. Nelson, 97 Vt. 101, 110, 122 A. 519; Schlitz v. Lowell Mut. Fire Ins. Co., 96 Vt. 337, 342, 119 A. 513. The test is whether the discretion was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable, for to do this would constitute an abuse. Dyer v. Lalor, 94 Vt. 103, 116, 109 A. 30; Schlitz v. Lowell Mut. Fire Ins. Co., supra.

No supporting affidavits were filed with the motion, nor, so far as appears by the record, was there any request that testimony should be taken. The motion itself was not verified. The newspapers referred to were attached to it, and an examination shows nothing of an inflammatory or denunciatory nature, but only a report that the respondent's counsel was understood to have offered a plea of guilty to murder in the second degree, which, it was believed, was for the purpose of obtaining a sentence of life imprisonment, and avoiding the death penalty, but which it was learned, the state had refused to accept.

Newspaper articles, even though denunciatory in character, are not in themselves, and in the absence of some evidence of the actual existence of a prejudice against the accused, sufficient to require the judge, in the exercise of his discretion, to conclude that a fair and impartial trial cannot be had. Downs v. State, 111 Md. 241, 73 A. 893, 896, 18 Ann. Cas. 786; Pennsylvania R. Co. v. City of Reading, 254 Pa. 110, 98 A. 791, 792, 793, Ann. Cas. 1918E, 562. No answer or counter affidavit was filed by the state, but this did not oblige the judge to adopt the inferences and opinions contained in the motion, or to treat the allegations as sufficiently proved. He was at liberty to draw his own inferences and reach his own conclusions. The motion itself was not evidence of the matters it recited. Central Vermont R. Co. v. Carpenter, 86 Vt. 67, 69, 83 A. 466. So, assuming that the motion had been presented to the authorized tribunal, no abuse of discretion is made to appear. The exception is not sustained.

Early in the trial the presiding judge ruled that, unless permission were given to do otherwise, all objections should be made from where counsel stood, and that they would not be allowed to state their claims at the bench, out of hearing of the jury. The respondent briefs an exception to this ruling, claiming that thereby his counsel were compelled to make statements in the hearing of the jury, which should not have come to their attention. It is doubtful that an exception was in fact taken to the ruling, but we treat the question as being properly before us.

This was a matter within the discretionary power of the court to supervise the general conduct of the cause on trial. The prohibition was not absolute, but required only that permission to do otherwise should first be asked and obtained. Several instances are cited in the respondent's brief, which are claimed to show enforced harmful statements before the jury, but in none of them was permission requested to approach the bench, and, further than that, we fail to perceive the prejudice which the respondent retributes to them. The exception is not sustained.

The crime was committed on the farm of Louis Sweeney, in the town of Berlin, on April 18, 1031, between 6:15 and 6:35 p. m. The respondent and the deceased were married about five years before and lived together in the city of Barre; The deceased had a daughter, Alta Slack, the issue of a prior union, and a son, Gordon Stacy, was born about a year after the marriage. The respondent and his wife separated in January, 1931, and the latter went to the Sweeney farm, where she was employed as housekeeper. She took the children with her. Later on Gordon was sent to be cared for elsewhere, but Alta remained with her mother. On April 16, 1931, the respondent was arrested and charged with failure to support his wife. He was in court on that day and on the next, and was released upon his own recognizance pending the disposition of the case.

William Emslie, a clerk in Lander's sporting goods store in Barre, testified that, about 1:15 p. m. on April 18, he sold to the respondent a .32-caliber revolver,' and a box of .32-caliber Remington "clean bore" cartridges. Edward Casey, who had known the respondent for a number of years, testified that he was present in the store at the time, saw a revolver being wrapped up and handed to the respondent by Emslie, overheard some conversation between them concerning the question whether the cartridges would fit the weapon, and saw the respondent leave the store with two packages. George Lander, the proprietor of the store, testified that he was present, and knew of a sale of a revolver and cartridges, but could not say to whom, because he was otherwise engaged at the time. John Morley said that at 1 or 2 o'clock that afternoon, he met the respondent on the street and walked beside him, and that the respondent left him in front of, or near, the Lander store.

The Sweeney farm is situated about four and one-half miles southerly from Montpelier, upon a side road which branches out from the Montpelier-Northfield cement highway. John Murray and Lawrence Griggs testified that they saw the respondent some time between half past 3 and quarter past 4 in the afternoon, walking south along the main highway, about two miles south of Montpelier. Doris Crozier and her mother, Mrs. Mary Crozier, identified him as the man whom they saw...

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