State v. Tatko

• Decision Date: 02 January 1957
• Docket Number: No. 1074,1074
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Michael TATKO.

Page 663

128 A.2d 663

119 Vt. 459

STATE of Vermont v. Michael TATKO.

No. 1074.

Supreme Court of Vermont.

Jan. 2, 1957.

Earle J. Bishop, State's Atty., Rutland, for plaintiff.

Joseph M. O'Neill, Rutland, for defendant.

Before JEFFORDS, C. J., and CLEARY, ADAMS, HULBURD and HOLDEN, JJ.

HOLDEN, Justice.

By a verdict returned at a session of the Rutland municipal court, the respondent Michael Tatko was found guilty of taking a female deer on November 20, 1955 in violation of V.S. 47, § 6493 as amended by the Acts of 1955, No. 290. This act, as amended, permits the taking of one wild deer with antlers not less than three inches in length during the regular deer season, the sixteen day period commencing on the second Saturday in November of each year. By Chapter 279 of the Vermont Statutes, Revision of 1947, the shooting, hunting or killing of a female deer as game during such season constitutes a criminal offense. The respondent presents two exceptions to his conviction. Although judgment was entered on the verdict of the jury, imposition of sentence was stayed and the cause passed to this Court for review.

The respondent assigns error to the action of the trial court in the admission of evidence and in denial of his motion for a directed verdict of acquittal. The latter exception challenges the substance of the proof presented against the respondent, and we are required to test the evidence in its aspect most favorable to the State, State v. Hart, 119 Vt. 54, 55, 117 A.2d 387; State v. Boudreau, 111 Vt. 351, 360, 16 A.2d 262; and free from the force of modifying evidence, State v. Perras, 117 Vt. 163, 164, 165, 86 A.2d 544; State v. Woolley, 109 Vt. 53, 63, 192 A. 1.

The alleged offense occurred in the Cold Hollow section in the town of Wells. On November 20, 1955 this hunting ground was covered with light snow. The respondent and three companions had entered the general area in the early afternoon, and shortly separated in different directions. Into the same general area, one Strobridge, a state game warden and two hunting companions, Hopson and Jones arrived soon thereafter, and separated. Strobridge took up a position along a runway in a draw nearby a thick belt of pines. From this observation post, Strobridge observed two fawn without horns, enter and disappear up the draw. Shortly, three deer without antlers entered the draw from the northwest, circled under the pines at a distance not more than forty feet from the warden and disappeared through the pines in a southeasterly direction. A second or two after they went out of sight, Strobridge heard a rifle shot from his southeast. He immediately took off through the pines in a course parallel to that taken by the three deer. Two more rifle shots were heard before the witness reached an open area. From the open area, he observed the respondent standing 200 feet to his south with his rifle at his shoulder, barrel pointed north. The rifleman's body jerked backward and a puff of smoke was emitted from the muzzle of the rifle, with an instantaneous rifle report from this direction. The respondent then proceeded from his firing position in the direction of his aim with his rifle at the ready position. As the warden moved out to meet him, he was observed by the respondent. The respondent changed his course immediately to the southwest. The warden intercepted the respondent. Upon inquiry about his luck, the respondent replied he 'missed him', stating he had fired on a spikehorn but knew he didn't hit him. The officer examined the respondent's license and took the calibre and serial number from his rifle. After declining the officer's suggestion that they look further in the new snow, Tatko departed from the scene. During the trial, Tatko testified that he had seen and fired on a spikehorn in the pines at a range between two and three hundred feet, and although he had fired about fifteen minutes before he was intercepted by the officer, he was tracking the target he had fired on when confronted by the warden.

The warden, joined by Hopson and Jones, Picked up the tracks of the three deer without antlers that he had observed disappear into the pines, just prior to hearing the first rifleshot. Trailing them through the pine, the tracks of one animal departed from the other two at the edge of the pines. Just beyond the end of the growth of pines and to the south, this track ended at a place where a doe lay fallen in the snow. Blood, steaming in the cold air, was flowing from the animal's nostrils and mouth. The carcass was still warm. The animal had been shot through the neck from the right, through the left side. The deer fell in the line of fire of the respondent's rifle at the time it was observed firing. In the pines, seventy feet north of the point where the doe was found, a bullet had creased a furrow in the snow, three feet in length. Line of sight south along this furrow traversed the point on the ground from which Tatko fired. A search at this point uncovered no empty cartridge cases; however, the area was covered by a six inch growth of ground pine topped by new snow that had been penetrated in many places as snow fell from the overhanging branches.

The first exception for our review relates to the testimony of Warden Strobridge received on his redirect examination by the State's Attorney. He was the first witness to testify at the trial. By direct examination of this witness, testimonial proof was received relating to his observation of the three deer without antlers, their direction of travel from his observation, his observation of the respondent firing his rifle and his discovery of the fallen animal. During his cross examination, respondent's counsel inquired of his observation of the direction the respondent faced when he fired, the discovery of the protected game, the nature of the bullet wound inflicted. He concluded the cross examination with the question, 'Do you want this jury to understand that you definitely know that Michael Tatko shot that deer?' The witness answered 'No.' The redirect examination followed:

'Q. By your answer to that question you say you do not definitely know, you didn't see it shot? A. That's right.

'Q. At the time you saw Mr. Tatko fire his rifle, you didn't see any deer. A. That is correct.

' Q. This deer that you found, can you tell us where it was in relation to the direction in which his rifle was pointed when he fired.

'Mr. O' Neill: We object. This is not redirect examination of this witness.

'The Court: Receive the answer. You may have an exception. A. It was in the same line.

'Q. What do you mean? A. The same direction. He had his rifle pointed in a northerly direction and the deer was right over in that area.'

Although there were facts in the testimony that preceded, from which inference could be drawn to locate the doe in the general line of the respondent's fire, no previous question had been directed specifically to this alignment. To the ruling of the trial court the respondent claims abuse of discretion to his prejudice.

Orderly judicial procedure requires proper observance and due regard for accepted rules established to govern the conduct of trials in court. And it has frequently been stated that the primary office of redirect examination is to meet what has been developed on cross examination, to explain away any tendency to discredit what may have been achieved on cross examination. It also has a proper function to clarify obscurities that may arise, even though in the strictest sense, not directly explanatory or relevant to matters developed on cross examination. State v. Fairbanks, 102 Vt. 283, 285, 288, 147 A. 682. Such rules for the introduction of evidence serve well the conduct of the trial, but they do not have the effect of conferring a right upon the parties litigant to...