State v. E. W. Pierce
| Decision Date | 07 November 1914 |
| Citation | 92 A. 218,88 Vt. 277 |
| Parties | STATE v. E. W. PIERCE |
| Court | Vermont Supreme Court |
May Term, 1914.
INFORMATION charging the illegal sale of intoxicating liquor. Plea, not guilty. Trial by jury, at the December Term, 1913 Orange County, Butler, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The opinion states the case.
There is no error and the respondent takes nothing.
David S. Conant for the respondent.
Frank S. Williams, State's Attorney, for the State.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.
The respondent was convicted at the last December Term of Orange County Court of illegal liquor selling. The State's evidence tended to show that William Eva, one of the persons to whom the respondent was charged with selling and who lived only a short distance away, was on various occasions at the respondent's dwelling-house, where the alleged sales were made, more or less intoxicated, and at one time so drunk he could not stand. This evidence was received subject to the respondent's exception,--as was the testimony of another witness that he had seen Eva drink cider and liquor at the respondent's house.
All this evidence was properly received. It tended to characterize the place and the business there carried on, State v. Krinski, 78 Vt. 162, 62 A. 37, and was within the wide latitude allowed in the reception of circumstantial evidence in criminal cases. State v. Ryder, 80 Vt. 422, 68 A. 652.
The express agent at Ely station was a witness for the State. He produced the books of the office kept in the regular course of business, and subject to the respondent's exception, he was allowed to testify therefrom as to various boxes of express matter from Boston received at his office, which were directed and delivered to the respondent. Of these, the witness had personal knowledge of only three. As to the others he depended wholly on the books. It was urged in support of the objection to this evidence that it was, except as to the three packages named, hearsay, merely; and that it was not shown that the packages or any of them contained intoxicating liquor. We need take no time with this question, for the respondent took the stand in his own behalf, and his testimony, fairly construed, was an admission that he received the packages and that they did contain intoxicating liquor. So the error, if any was committed, was harmless. Herrick v. Holland, 83 Vt. 502, 77 A. 6; Coolidge v. Taylor, 85 Vt. 39, 80 A. 1038; Hyde v. Swanton, 72 Vt. 242, 47 A. 790. In the cross-examination of one of the respondent's witnesses, the State was allowed, subject to exception, to ask him if he used intoxicating liquor at times; and he replied that he did. The only object of the inquiry was, of course, to discredit the witness. The extent to which the cross-examination may go in this direction rests largely in the discretion of the trial court, Hathaway v. Goslant, 77 Vt. 199, 59 A. 835, and "the modern tendency is to greater liberality of cross-examination for the purpose of finding out who and what the witness is." State v. Slack, 69 Vt. 486, 38 A. 311. The exception is unavailing.
The other exceptions taken at the trial are not briefed or considered.
PETITION FOR NEW TRIAL. The respondent also brings a petition for a new trial, in support of which the following facts are made to appear.
The respondent and his counsel expected that Eva would be called by the State. He had been a witness at a court of inquiry instituted by the State's attorney before the information was filed, and he was named in the specification filed in the prosecution against the respondent. As soon as they learned that he was not to be called by the State, they caused a subpoena to be issued and had the same seasonably served on Eva, summoning him to Chelsea as a witness for the defence. Eva is a man seventy-three years of age and not in very good health. He lived at Post Mills, thirteen miles from the place of trial. The day on which the case was called and on which Eva was summoned to appear was one of the coldest days ever known by the witnesses; and it was preceded by a severe storm which left the roads badly drifted with snow and almost impassable for teams. For these reasons Eva was unable to obey the subpoena and did not attend the trial. If he had been present, he would have testified that he never bought any intoxicating liquor of the respondent, and that he was never intoxicated at the respondent's house; in short, he would have contradicted all of the State's evidence so far as it connected him with the charge made against the respondent.
As soon as it became known that Eva was not to be present at the trial, the respondent's co...
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