State v. Watson.
| Citation | 49 A.2d 174 |
| Decision Date | 01 October 1946 |
| Docket Number | No. 1064.,1064. |
| Parties | STATE v. WATSON. |
| Court | United States State Supreme Court of Vermont |
OPINION TEXT STARTS HERE
Exceptions from Rutland County Court; Cleary, Presiding Judge.
Ronald J. Watson was convicted of murder in the first degree, and he brings exceptions.
Exceptions overruled.
Alban J. Parker, Atty. Gen., and Edward G. McClallen, Jr., State's Atty., of Rutland, for plaintiff.
R. Clarke Smith and Robinson E. Keyes, both of Rutland, for defendant.
Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
The respondent has brought this case before us on exceptions following his conviction of the crime of murder in the first degree. The deceased was Henry C. Teelon, a resident at the time of his death of the City of Rutland.
The first question relates to an exception taken to the denial of a motion for change of venue. This motion was brought under P.L. § 2353, which reads as follows:
‘When a person is under information or indictment for an offense punishable by death or imprisonment in the state prison, the respondent or the state's attorney of the county where the prosecution is pending, may apply to a superior judge, petitioning that the trial of such respondent be removed to and had in another county.’
By P.L. § 2355 it is provided that ‘the judge to whom the application is preferred, may, in his discretion, by an order in writing, direct that the trial of such respondent be removed to and had in some other county named.’
The petition alleged that by reason of the favorable reputation of Teelon, the wide and unfavorable publicity given to the manner of his death and to a certain alleged confession of the petitioner, throughout the city and county of Rutland, and the widespread public discussion and animosity against the petitioner which now exists and will continue to exist among the inhabitants of the city or county of Rutland, a fair and impartial trial cannot be had in the county of Rutland.
The petition was supported by the affidavit of counsel for the petitioner. The affidavit set forth, in substance, that all the details relating to the death of Teelon and the petitioner's connection with it, including an alleged confession by Watson, have received wide and extensive publicity in the Rutland Herald, a daily newspaper published in the City of Rutland and having a wide circulation throughout that city and vicinity. That since his assignment as counsel for Watson the deponent has discussed the case extensively with a large number of residents of Rutland and vicinity and that by reason of the wide publicity given the case he has found a unanimous conviction of opinion on the part of those with whom he has talked of the guilt of Watson and that by reason of such publicity and the personal popularity of Teelon he has found a widespread and profound conviction that Watson should receive the maximum penalty provided by law.
It is also alleged in the affidavit, upon information and belief, that it will be impossible to secure in Rutland county twelve jurors who have not read of the case and formed an opinion in regard to the same, so as to render it impossible that a fair trial be had in Rutland county.
It is further alleged, upon information and belief, that the trial will be largely attended by persons convinced of the guilt of Watson and the desirability of imposing on him the maximum penalty permitted by law and that this sentiment is bound to be transmitted to the jury, all to the prejudice of Watson to a fair and impartial trial.
The superior judge presiding at the trial to whom the petition was addressed denied the same in the exercise of his discretion and allowed the respondent an exception to his ruling.
In determining whether there has been an abuse of discretion the test is whether the discretion was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. State v. Stacy, 104 Vt. 379, 389, 160 A. 257, 747.
The motion was not verified. No answer or counter affidavit was filed by the State, but this did not oblige the judge to adopt the inferences and opinions contained in the motion, or to treat the allegations as sufficiently proved. He was at liberty to draw his own inferences and reach his own conclusions. The motion itself was not evidence of the matters it recited. State v. Stacy, supra.
The newspaper articles referred to in the affidavit were made a part thereof. An examination of these accounts of the killing of Teelon shows nothing of an inflammatory nature. But newspaper articles, even though denunciatory in character, are not in themselves in the absence of some evidence of the actual existence of a prejudice against the accused, sufficient to require the judge, in the exercise of his discretion, to conclude that a fair and impartial trial cannot be had. State v. Stacy, supra, 104 Vt. at page 390, 160 A. 257, 747; Central Vt. R. Co. v. Carpenter, 86 Vt. 67, 70, 83 A. 466.
The allegations in the affidavit to the effect that the deponent has found a unanimous opinion on the part of those persons in the county with whom he has talked that Watson was guilty of the murder of Teelon and should receive the maximum penalty are but mere conclusions or opinions of the deponent. No conversations with any person or persons are set forth or other facts stated to show a basis for the conclusions or opinions set forth in the affidavit, so for this reason, if for none other, the judge was not obliged to adopt them but was at liberty to reject them for lack of evidence. Central Vt. Ry. Co. v. Carpenter, supra, 86 Vt. at pages 70, 71, 83 A. 466; Willard v. Norcross, 83 Vt. 268, 273 et seq., 75 A. 269. See also State v. Stacy, supra, 104 Vt. at page 390, 160 A. 257, 747 and Downs v. State, 111 Md. 241, 73 A. 893, 18 Ann.Cas. 786.
The superior judge was not obliged to treat the allegations in the affidavit made on information and belief as sufficiently proved. They had no force as evidence, and could do no more than raise an issue. Central Vt. Ry. Co. v. Carpenter, supra, 86 Vt. at page 70, 83 A. 466.
The fact that no answer or counter affidavit was filed does not affect our holdings in respect to the affidavit in question. Central Vt. Ry. Co. v. Carpenter, supra, 86 Vt. at page 69, 83 A. 466.
Counsel for the respondent in oral argument laid much stress on the confession of Watson in support of his claim of error in respect to the exception under consideration. He argued that this confession, which was excluded by the court because not being voluntarily made, having been given in substance in the newspaper, made it difficult to examine the jurors on their voir dire as it was impossible to examine fully without referring to the confession and asking whether any of the jurors had read it. It seems to us that this claim is unwarranted. Counsel could accomplish his purpose by merely asking the persons who were called to sit on the jury whether they had read newspaper accounts of the crime without referring particularly to the confession contained therein. If an affirmative answer was had other pertinent questions could follow without reference to the confession until counsel was satisfied as to whether or not he should challenge.
It is also claimed that the widely publicized fact of the confession was bound to have come to the attention of those summoned as jurors and to have affected their judgment in the case. This claim must also be rejected. In addition to what we have already said in respect to newspaper articles as affording a ground for a change of venue, an answer to this contention is that counsel for the respondent could, as before noted, ask questions which would cover this situation without referring to the confession and we must assume that the persons queried would truthfully answer such questions.
It should be noted that apparently the apprehension of counsel that a jury could not be had who would fairly and impartially try the respondent was not well founded. It is stated in the brief for the State that the respondent upon examination of prospective jurors exercised only three peremptory challenges out of the six to which he was entitled by virtue of P.L. § 1684. This statement is not denied by the respondent and is borne out by the papers on file in the case which also show that only one person was excused for cause shown.
No abuse of discretion is made to appear. The exception is not sustained.
The next and final exception relates to the admission as an exhibit of a card bearing the finger prints of the respondent. When first offered no circumstances attending the giving of the prints were related and, upon objection, the card was excluded.
Later in the case the police officer who took the prints was recalled as a witness. It appears...
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