State v. Tinker

• Decision Date: 05 May 1936
• Citation: 184 A. 698,108 Vt. 213
• Parties: STATE v. LLOYD TINKER
• Court: Vermont Supreme Court

184 A. 698

108 Vt. 213

STATE v. LLOYD TINKER

Supreme Court of Vermont

May 5, 1936

February Term, 1936.

Status of Complaint as to Testimony Where No Exceptions to Its Admission---Adultery---Admissibility of Question as to Purpose of Trips Testified to as Indication of Affection---Admissibility of Evidence for Purpose of Impeaching Complaining Witness---Silence of Court as Allowance of Exceptions---Nothing Before Supreme Court Where No Exception Taken to Remarks Claimed Prejudicial.

1. In prosecution for adultery, where respondent did not except to any testimony of complaining witness, held that complaint in his brief regarding such testimony because of inference adverse to him that might be drawn therefrom brought nothing before Supreme Court for consideration.

2. In prosecution for adultery, where complaining witness testified on cross-examination, in answer to question whether he had on any other occasions than one about which he testified on direct examination seen indications of affection between his wife and respondent, that his wife and respondent went away alone, exclusion on further cross-examination of question as to purpose of such trips, designed to bring out fact that wife and respondent went on business of complaining witness on such occasions, held error.

3. In prosecution for adultery with wife of complaining witness exclusion of testimony sought to be elicited from complaining witness on cross-examination, for the purpose of impeaching and discrediting his testimony, as to where he slept on the night following that on which the crime was alleged to have been committed, as to length of time that elapsed between alleged commission of crime and making of complaint to State's attorney, and as to whether complaining witness and his wife talked over the event after the night on which the crime was alleged to have been committed, held error.

4. Where exceptions were requested to exclusion of questions asked on cross-examination and court neither allowed nor refused the exceptions, but remained silent, held that silence should be taken as allowance.

5. Where respondent did not attempt to correct the court or take exceptions to remarks of court made when jury returned to have some testimony read and to ask some questions of court held there was nothing before Supreme Court for review on respondent's claim that some of the court's remarks were incorrect and prejudicial to him.

INFORMATION charging adultery. Plea, not guilty. Trial by jury at the April Term, 1935, Franklin County, Cleary, J presiding. Verdict of guilty and judgment and sentence thereon. The respondent excepted. The opinion states the case.

Judgment and sentence reversed and cause remanded for a new trial.

Guy M. Page, Hollis C. Porter, and P. C. Warner for the respondent.

John H. Webster, State's attorney, for the State.

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

OPINION

THOMPSON

This is a prosecution of the respondent for adultery with Mary Corse, the wife of one Benny Corse. Corse and his wife lived in Fletcher, Vt. The respondent had lived in their family for one and one-half years or more prior to March 16, 1935. Corse and his wife gave a party at their home in the evening of March 16, 1935, which was attended by several people, including the respondent. Benny Corse, the complaining witness, and the principal witness for the State, testified on direct examination that during the evening he missed his wife, and, after a search, he found her and the respondent in a storeroom upstairs, off from a bedroom, in the act of adultery. After he found them in the storeroom, there was considerable conversation between him and the respondent, in which Mrs. Corse joined, which we will not perpetuate by repeating. The respondent told Corse at that time that somebody had stolen a pint of liquor from him and that he was searching Mrs. Corse for it. They went downstairs and out onto the veranda of the house where the conversation was continued. It was finally ended by Corse telling the respondent to pack up his clothes and go out and stay out.

The respondent complains of the testimony of the witness Corse given on direct examination because of inferences adverse to him that might be drawn from that testimony; but, as the respondent did not except to the admission of any of that testimony, there is nothing before us for consideration. State v. Comstock, 86 Vt. 42, 83 A. 539.

Mr. Corse testified on direct examination that on the evening of the party he saw his wife sitting in the lap of the respondent. That is the only prior act of familiarity of which the State introduced evidence.

The witness Corse was asked on cross-examination: "Have you ever on other occasions seen any indications of affection between your wife and Lloyd Tinker?" and the witness replied: "Only just her running around with him." He was then asked: "When you say running around with him you mean that she and he went away alone?" and the witness replied: "Yes, sir." He was then asked: "Well, now, isn't it a fact that you frequently sent her with him?" On objection by the State, the question was excluded. That was followed by the question: "Well, weren't there times when he went away with her and it was for something that you wanted him to do?" On objection by the State, the question was excluded. He was then asked: "When you say they went away together what time of day would they go away?" and he replied: "Any time of day they wanted to." He was then asked: "And when they went away together were they on pleasure trips or on business for you?" On objection by the State, the question was excluded.

Counsel for the respondent then said:

"We would like an exception there and let the record show that our exception is based on the fact that the witness having testified that there were other occasions which he and the wife --...