State v. Ward Prouty

• Decision Date: 05 October 1920
• Parties: STATE v. WARD PROUTY
• Court: Vermont Supreme Court

111 A. 559

94 Vt. 359

STATE v. WARD PROUTY

Supreme Court of Vermont

October 5, 1920

May Term, 1920.

INFORMATION for a breach of the peace. Plea, not guilty. Trial by jury at the September Term, 1919, Orleans County Moulton, J., presiding. Verdict, guilty. Judgment on the verdict. The respondent excepted. The opinion states the case.

Judgment that there was no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be done.

E A. Cook, A. W. Farman, and Ward Prouty for the respondent.

Frank D. Thompson, State's Attorney, for the State.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

WATSON

The information, as originally filed, charged the respondent with breach of the peace at Newport, on the day named, by his tumultuous and offensive carriage by then and their swearing at, striking and beating Ida Blair, contrary, etc. Ida Blair is the mother of respondent's wife, also of Charles Blair mentioned below. The record shows that immediately preceding the trial of this case, the case of State v. Charles Blair was tried by jury, resulting in a verdict of guilty. In that case Blair was charged with breach of the peace by assaulting the respondent in the present case. During the trial of the Blair case the jurymen, not on that panel, were not excluded from the court room, and as many as desired heard the evidence. Blair testified, as did Prouty, the present respondent. In that case the evidence on the part of the State tended to show that on the day alleged therein, Blair entered Prouty's office in Newport City and made an unwarranted assault upon him. The defence was that Blair acted in self-defence. The latter testified that he entered the office, stating that he had just heard that Prouty had struck Blair's mother several blows, and asking if it was true; that Prouty said it was true, and "furthermore if she comes into my house again she will get what you are going to get now, " etc.--the affray then taking place.

The respondent in the present case moved for a continuance, because of the facts that appeared in the trial of the Blair case, and the presence of practically all of the jurymen in attendance at the term, during that trial, hearing the respondent therein testify; and for the reason of the prejudice shown by the affidavit filed in connection with this matter. The affidavit referred to was made by one of the jurymen at the term, and was to the effect that he heard a conversation between two other jurymen, giving their names, in which one stated to the other that "if Ward Prouty should die it would make no more impression to the City of Newport than to put your finger in the Atlantic Ocean and take it out. "

In overruling the motion, the court stated that it did so as a matter of discretion, allowing respondent whatever rights he had by way of exception. There was nothing about the action of the court in disposing of the motion, taking it out of the general rule that, being discretionary, it was final and unrevisable.

The State's evidence tended to show that at the time in question the respondent and his wife were living apart, she with her baby was living in their house in Newport; that Mrs. Blair was there, having been sent for to help her daughter, Mrs. Prouty, with her sick baby; that on that day the respondent came into the house, uninvited, and asked his wife if her mother was there, and being told that she was, he said he would give her so many minutes to get out; that Mrs. Blair was then up stairs with the baby; that the respondent went up where she was, commenced calling her vile names and using abusive language to her, and struck her three times on the side of her head with his open hand; that Mrs. Prouty, hearing her mother scream, went up where she was, and the respondent then soon went down.

In defence, the respondent, testifying in his own behalf, stated that on that occasion he went into his own house, where his wife and child and his mother-in-law, Mrs. Blair, were; that he went upstairs into the bedroom where Mrs. Blair was and told her to leave; that she refused to go, and he took her by the arm, but did not strike her. In cross-examination he stated that he laid hands on her for the purpose of forcing her to leave the house--took hold of her arm; that she resisted and struggled and screamed. Mrs. Blair, who was called as a witness by the State, testified that the respondent did not on that occasion take hold of her arm, nor did he take hold of any part of her body.

In cross-examining Mrs. Prouty, the wife of respondent and a witness for the State, the respondent's attorney brought out the fact that on the morning in question, while respondent was in the house and before he went up where Mrs. Blair was, he told the witness he did not want her to sell a certain stove they had, saying if she needed money she could have it; that she told him she had not disposed of the stove, and did not expect any money from him that morning; that she was then entitled to certain payments of alimony, but none was then due. The subject-matter of this examination was not touched upon in her examination in chief. The respondent offered to show in defence that on the day before this affair with his mother-in-law, there was an attempt to remove the stove from the house, and that occasioned him to go there the next morning, as he did. This evidence was further offered as bearing on the truthfulness of the State's witness. To its exclusion an exception was saved. The matter pertaining to the stove was wholly collateral and, being brought out by the respondent, could not be contradicted by him. Gregg v. Willis, 71 Vt. 313, 45 A. 229. What occasioned the respondent to go there the next morning was immaterial. The offence with which he is charged was wholly committed while he was there and in the house.

The respondent having testified that he did not strike Mrs. Blair, but did lay his hands on her for the purpose of forcing her to leave the house, etc., the State, on motion and subject to such exception as respondent was entitled to, was permitted to amend the information by inserting immediately after the words "striking and beating Ida Blair, " the following: "and by then and there assaulting the said Ida Blair by then and there intentionally and forcibly laying his hands upon the said Ida Blair without her consent." This amendment served only to insert another mode of breaking and disturbing the public peace. After the amendment, as before, all of the acts alleged were connected, done at the same time, and constitute but one offence, namely, a breach of the public peace. State v. Matthews, 42 Vt. 542. The amendment was based solely on the testimony given by the respondent as to what he did to Mrs. Blair at the time and place in question, and was to make the modes of the breach of the public peace charged, sufficiently varied to include that which his testimony tended to show. Objection thereto was made on the ground that it would be unfair to permit the amendment, because respondent would have to put another case at issue, as it would bring up the matter of the injunction then restraining him from interfering with his wife's possession or control of the house in which the breach of the peace charged took place. The objection was without merit, for the injunction could be brought into this case only as it might be legitimate evidence on some question involved therein. If it be such evidence, then the fact that it was issued in some other case could constitute no valid objection to its use.

Respondent then demurred to the amended information, on the ground that it sets out no additional offence; also asked that the amendment be stricken for the same reason. Exception was saved to the overruling severally of the demurrer and the motion to strike. What we have said respecting the allowance of the amendment sufficiently shows that the exception last mentioned is without force.

Later the State offered in evidence the petition, injunction, and order of service, in divorce proceedings brought by the wife of the respondent, as libellant, against the respondent, as libellee, and pending at the time the alleged breach of the peace took place. The evidentiary force claimed from this evidence arises from the injunction. Objection was made on the grounds: (1) That the order of injunction when granted was beyond the power of a superior judge to make, and (2) that the injunction had no material bearing on any issue in the case being tried. The evidence was admitted and exception saved.

But we need not consider this exception; for the court ruled that the evidence had a bearing only on the question of the respondent's right to eject Mrs. Blair from the house, and that that question arose only in connection with the assault alleged by the phrase inserted in the information by the amendment; that it had no bearing on the question whether a breach of the public peace was committed by the respondent by striking Mrs. Blair. No exception was taken to this ruling, so it stands before us as the law of the case. At the request of respondent the court submitted a special verdict to the jury to be answered in case they found the respondent guilty, namely, "Did the respondent strike Ida Blair?" The jury answered, "Yes."

Since the respondent was thus convicted of a breach of the public peace in the mode alleged in the information as originally drawn, exclusive of the mode inserted by the phrase of the amendment, such conviction is sufficient to sustain the judgment, and an affirmance will follow unless reversible error be shown in some other part of the record. State v. Matthews, cited above.

For the same reason we need not consider the exception to the...