State v. Wallis L. Fairbanks

• Decision Date: 06 November 1929
• Citation: 147 A. 682,102 Vt. 283
• Parties: STATE v. WALLIS L. FAIRBANKS
• Court: Vermont Supreme Court

147 A. 682

102 Vt. 283

STATE v. WALLIS L. FAIRBANKS

Supreme Court of Vermont

November 6, 1929

May Term, 1929.

Criminal Law---Disclosure of Purpose of Cross-examination---Adultery---Witnesses---Evidence of Respondent's Knowledge of Certain Facts To Explain Reference in Letter Written by Him to Complaining Witness---Redirect Examination of Complaining Witness To Meet Claim of Promised Immunity---Statements of Respondent Explaining Equivocal Act as Part of Res Gestae---Harmless Error---Declarations Made by Witness out of Court in Corroboration of Testimony in Court---Admission over Objection of Fact Previously Shown without Objection---Necessity of Statement of Claimed Ground of Error in Lower Court---Discretion of Court---Harmless Error.

1. Cross-examiner need not make offer disclosing purpose of cross-examination, but, when such an offer is made, trial court may rely upon it, and need not consider other aspects of evidence offered.

2. In prosecution for adultery, where State, after introducing evidence tending to show a number of specific instances of sexual intercourse between complaining witness and respondent, in-

cluding the one for which he was on trial, and a number of letters from respondent to witness, including one written June 13, 1926, wherein respondent wrote that he should not have called her up, but felt rather worried about her, and he would not do it again, evidence that respondent before writing such letter knew that witness was afflicted with syphilis and of the results of various Wassermann tests on her, held admissible on cross-examination of complaining witness in explanation of respondent's letter and in support of theory that it was this condition that was referred to in letter.

3. In prosecution for adultery, where respondent in cross-examination of complaining witness asked a large number of questions for purpose of showing that such witness had been promised some favor if she would testify against respondent, and also that she at some time had been confined in State reformatory, it not appearing in cross-examination or elsewhere why she was in such institution, held that it was proper on redirect examination for State to show she had been sentenced thereto on her plea of guilty to commission of adultery with respondent on same date and at place alleged in indictment upon which he was being tried.

4. In prosecution for adultery, where cross-examination of complaining witness by respondent had a tendency to leave obscure question whether promises of favor had been made to her for her testimony, held that it was proper to clear up such obscurities, even though evidence was not in its strictest sense explanatory or relevant to matters brought out in cross-examination.

5. In prosecution for adultery, where respondent in cross-examination of complaining witness had sought to show that inducements had been made to her by more than one person to testify against respondent, and there were some replies that indicated that witness at least at some time had a hope or expectation that she might be allowed to return to her home and not have to suffer full penalty of law, held that it was proper on redirect examination for State to show by one general question that no one had offered her any inducement to testify against respondent, since cross-examination had tendency to leave obscure question whether she had testified under influence of some inducement or not, and it was proper redirect examination to clear up such obscurities.

6. In prosecution for adultery, where State had shown by testimony of sister of complaining witness and others that respondent had called to see latter at such sister's house on two occasions when complaining witness was visiting there, such testimony being introduced by State as tending to support claim of improper intimacy and clandestine meetings for that purpose, held that on cross-examination of such sister it was proper to show reasons then stated by respondent for wishing to see complaining witness, since respondent's act being equivocal, evidence of his statements made contemporaneously was admissible in explanation of it as part of res gestae, and fact that part of conversation not brought out in direct examination was a declaration in favor of party was no exception to rule.

7. In prosecution for adultery, error, if any, in permitting question asked witness to be answered, held harmless, where witness had already testified to same thing without objection.

8. In prosecution for adultery, where respondent had drawn from State's witness, who had also testified for State in previous trial of same cause, in extended cross-examination to which she was subjected for purpose of impeachment, that following former trial and while in custody of an officer who was to take her for commitment to State industrial school she had told him that had she known how respondent's first trial was coming out she would have testified differently, testimony on redirect examination to effect that, on day when witness made such admission, she had been arraigned on charge of adultery with respondent at time and place when and where she had testified on trial such relations with him had taken place, and had pleaded guilty thereto, held prejudicial error, since proof of declarations made by witness out of court in corroboration of testimony given therein is inadmissible, and whatever motive prompted witness to testify against respondent, or whatever may have been her relation to cause he was on trial for, such motive or relation came to exist long before she pleaded guilty.

9. In prosecution for adultery, error, if any, in admission of testimony of witnesses that they had seen respondent at certain home where complaining witness once roomed, that they had gone there for intoxicating liquor, and that such liquor was sold there, held harmless, where it had already been shown by complaining witness and later by another witness, without objection, that liquor was sold there.

10. Supreme Court will not consider a ground for exclusion of evidence not raised below.

11. In prosecution for adultery, it was within discretion of trial court to permit putting of question that had already been answered.

12. In prosecution for adultery, when State was endeavoring to show by a hostile witness that man who had visited complaining witness at her room at a certain house was respondent permitting answer to question as to when it was with respect to time witness heard man go into such room that he had heard latter's name mentioned, if error, held harmless, where it had already appeared without objection that while complaining witness lived at that place respondent had frequently been seen going in and out of such house.

INDICTMENT FOR ADULTERY. Plea, not guilty. Trial by jury at the September Term, 1928, Washington County, Sherburne, J presiding. Verdict, guilty, and judgment and sentence thereon. The respondent excepted. The opinion states the case. Judgment reversed, conviction and sentence set aside, and cause remanded.

Judgment reversed, conviction and sentence set aside, and cause remanded.

Herbert G. Tupper and Stanley C. Wilson for the respondent.

J. Ward Carver, Attorney General, and Charles B. Adams, special counsel, for the state.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

WILLCOX

This cause has been in this Court once before and comes here again on exceptions by respondent, following a second trial and second conviction of the crime of adultery, of which the respondent is charged with having committed with one Irma Stoodley, she being an unmarried woman and the respondent being a married man.

The first exception relied upon relates to the exclusion of a question put to Irma Stoodley, the complaining witness, in cross-examination by respondent's counsel. The State's evidence tended to show at least twelve specific instances of sexual intercourse between this witness and the respondent, including the one he was on trial for; and the State introduced fifteen letters written by the respondent to her, the first dated May 21, 1926, and the last September 13, 1926. In one, written June 13, 1926, the respondent wrote, "I should not have called you up, but I felt rather worried about you. I won't do it again."

The respondent sought to show in cross-examining this witness that she had syphilis and had told the respondent about it, claiming that it bore directly upon her testimony of having had intercourse with the respondent and the reasonableness or unreasonableness of the fact so testified to. The State objected to this as not proper cross-examination, and the court so ruled; but the State withdrew its objection and the witness was permitted to testify that in March, 1925, she told the respondent she had syphilis.

In further cross-examination the respondent offered in explanation of the letter of June 13 to show various Wassermann tests for syphilis made by different doctors and communicated to the respondent before said letter was written. This was excluded and the respondent excepted. This matter was plainly cross-examination, but the respondent made an offer, so the question is, was it admissible under the offer. The general rule is that a cross-examiner need not make an offer disclosing the purpose of his cross-examination. But when such an offer is made, the trial court may rely upon it and need not consider other aspects of the evidence offered. So we do not inquire further than it was encumbent upon the trial court to do Green v. LaClair, 91 Vt. 23, 27, 99 A. 244. That the respondent knew about the girl's condition and the tests taken in respect thereto was admissible for what it was worth in support of the theory that it was this...