State v. Wallis N. Fairbanks

• Decision Date: 13 January 1928
• Parties: STATE v. WALLIS N. FAIRBANKS
• Court: Vermont Supreme Court

139 A. 918

101 Vt. 30

STATE v. WALLIS N. FAIRBANKS

Supreme Court of Vermont

January 13, 1928

November Term, 1927.

Trial---Cross-examination---When Offer of Excluded Evidence Unnecessary---Criminal Law---Witnesses---Credibility---Motive---Supreme Court Rule 9---Necessity of Showing Prejudicial Error---Scope of Cross-examination To Test Veracity of Witness in Adultery Prosecution---Argument of Counsel as To Implied Immunity of Witness from Prosecution---Adultery---Evidence To Show Adulterous Disposition---Circumstantial Evidence To Prove Adultery---Necessity of Presenting Claimed Error Below---Waiver of Error---Inadequate Briefing---Duty of Court as to Instructing Jury.

1. Where question asked on cross-examination was excluded on objection, no offer in support thereof was necessary, if question was in fact proper cross-examination.

2. In prosecution for adultery alleged to have been committed by respondent with unmarried woman who was on probation and in his charge, and who had testified on direct examination as to her dislike for restraint he imposed upon her, and as to her love for and sexual relations with another person, exclusion of question on cross-examination as to whether such other person had been furnishing her money during past 2 1/2 years held prejudicial, since it bore directly upon her motive for charging respondent with improper intimacy with her, which respondent claimed was to discredit him so he could no longer exercise restraint over her, and to permit her to resume her relations with such other person.

3. Under Supreme Court rule 9, error is presumed to be harmless and, to be reversible, prejudice must affirmatively appear.

4. In prosecution for adultery, where complaining witness was young woman of abandoned character, held that great latitude was to be allowed in testing her accuracy and veracity, including careful investigation of whatever motive might actuate her in giving her testimony.

5. In prosecution for adultery, refusal of court to permit respondent's counsel to argue an implied promise of immunity by State to witness testifying that respondent had committed adultery with her, held without error under circumstances of case.

6. In prosecution for adultery, charge that jury might consider evidence that respondent had had sexual intercourse with a woman other than the one with whom he was charged with having committed adultery, in her presence, as tending to show an adulterous disposition between latter and respondent, held without error.

7. Adultery, from the natural secrecy which attends the commission of the offense, is usually to be proved by circumstances, and a wide discretion exists in admission of even comparatively insignificant instances of intimacy between parties.

8. Ground of error claimed in brief, but not presented at trial will not be considered by Supreme Court.

9. Ordinarily, failure of respondent in his opening brief to rely on ground of error stated at trial amounts to waiver thereof.

10. Briefing on respondent's behalf which is merely repetition of what was stated in taking exception is inadequate, and question so briefed will not be considered.

11. In prosecution for adultery, failure of court to charge that jury should consider situation of witness claiming to have committed adultery with respondent, and effect impending sentence upon her may have had to cause her to give testimony against respondent in hope of finding favor with prosecuting officers, held without error.

12. While it is court's duty, without request, to charge upon all substantial issues in case, court is not required to make every conceivable comment upon evidence and its weight, hence failure to charge jury to consider effect of impending sentence on witness claiming commission of adultery with respondent was not error.

INDICTMENT FOR ADULTERY. Plea, not guilty. Trial by jury at the September Term, 1926, Washington County, Graham, J., presiding. Verdict guilty, judgment and sentence thereon. The respondent excepted. The opinion states the case. Subsequently respondent brought a petition for a new trial upon ground of newly discovered evidence.

Judgment reversed. Conviction and sentence set aside, and cause remanded. Petition for a new trial dismissed, without costs.

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

J. Ward Carver, Attorney General, Deane C. Davis, State's attorney, and Charles B. Adams, special prosecutor, for the State.

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

OPINION

MOULTON

The respondent, a married man, and the sheriff of Windsor County, was convicted of the crime of adultery, committed with Irma Stoodley, an unmarried woman, at Warren in Washington County, on July 18, 1926. He has brought the case to this Court on exceptions; and by a petition for a new trial in which he alleges newly discovered evidence. The first exception briefed is one taken to the exclusion of a question asked by respondent's counsel during the cross-examination of Irma Stoodley. In order clearly to understand the scope of this exception it is necessary to review a part of the testimony as it stood at the time the question was asked.

The witness had testified that some three years before the time of the trial she became acquainted with one Dan Barney, a married man, and was accustomed to seeing him two or three times a week, and that she loved him, and had been having sexual intercourse with him upon occasions of their meeting. She met Barney on the 19th day of June, 1923, and commenced having illicit relations with him on the 12th day of the following July; that her father did not like the idea of her going with Dan Barney; that she and Dan Barney were arrested in Bellows Falls during the May preceding the trial of the present case, after they had been to a dance together, and were both charged with and pleaded guilty to the offense of operating an automobile while under the influence of intoxicating liquor; that the respondent came to the court and that, after sentence had been imposed, the witness and Dan Barney were placed on probation, and that one of the terms of her probation was that she was to keep away from Dan Barney; that, through the efforts of the respondent and the probation department, she obtained a position in Waterbury, where she did housework, being at the time on probation; that she had met Dan Barney four times since then, in various places in Vermont and New Hampshire, and had intercourse with him, on one occasion spending two days in a camp near Woodsville, New Hampshire, and occupying the same bed with him during one night; and on one occasion hid from the respondent so that she could keep an appointment with Barney. She also testified that at the time she was put on probation in the municipal court in Bellows Falls she heard the municipal judge tell the respondent that he would have to look out for her, and that she knew that immediately thereafter the respondent wrote to obtain a position for her; that she did not like the respondent's oversight of her, and had not liked it at any time, and did not like to have him in charge of her in any way; that she was displeased when the probation department and the respondent arranged it so that she would be away from Dan Barney, and that she laid it to the respondent, and thought that it was he who was separating her from Barney; that she had written her sister shortly before the trial to the effect that it was all for the love of Dan Barney that she had done what she had done, and that she meant what she had written.

After these matters had appeared in testimony the following question was asked: "During the last two years and one-half or so, did Dan Barney furnish you money?" Counsel for the State objected on the ground that this was not cross-examination, and the court so ruled and excluded the question to which an exception was taken. No offer was made in support of the exception, but this was not necessary if the question was in fact proper cross-examination. Knapp v. Wing, 72 Vt. 334, 340, 47 A. 1075. The purpose of the inquiry was plain enough. The respondent sought to show a motive on the part of the witness for charging the respondent with improper intimacy with her, and that such motive consisted in her desire so to discredit the respondent that he would no longer be able to exercise restraint or oversight upon her, and thus she would be free to pursue her amorous adventures with Dan Barney.

Under these circumstances the excluded question bore directly upon the strength of the witness' claimed motive for falsifying. Dan Barney's society would be more valuable to her if in addition to his embraces it included financial assistance.

It is argued that the exclusion of the question should be upheld as a discretionary ruling, in controlling and limiting the extent of the cross-examination. It was said in State v. Long, 95 Vt. 485, 491, 115 A. 734, 737, that:

"A reasonable opportunity to show in cross-examination that a witness is unreliable, biased, or prejudiced, is a matter of right * * * * * and much latitude is allowed in this line of cross-examination. Nevertheless the extent to which it shall be allowed to proceed rests largely in the sound discretion of the trial court, whose action will not be revised here unless an abuse of that discretion appears."

It has also been held that a ruling that can be made as a matter of discretion will be presumed to have been so made, unless the contrary affirmatively appears from the record. Murray v. Nelson, 97 Vt. 101, 110, 122 A. 519; Parkhurst v. Healy's Estate, 97 Vt. 295, 296, 122 A. 895, and cases cited; Capital Garage Co. v. Powell, 98 Vt. 303, 312, 127 A. 375; State v. Long, supra.

But here it affirmatively appears...