State v. Wilkins
| Decision Date | 16 September 1893 |
| Citation | 28 A. 323,66 Vt. 1 |
| Parties | STATE v. WILKINS AND BLOW |
| Court | Vermont Supreme Court |
GENERAL TERM, 1892
Indictment for rape. Plea, not guilty. Trial by jury at the September term, 1891, Chittenden County, ROSS, C. J presiding. Verdict guilty. The respondents except. The opinion states the case.
The exceptions are sustained in respect to these two errors in the charge, judgment reversed, verdict set aside and cause remanded for a new trial.
Henry Ballard and J.A. Brown for the respondents.
PRESENT Taft, Thompson, Rowell, Start, and Munson, JJ. Rowell, Munson and Start, JJ., concur. Taft and Thompson, JJ., dissent.
TYLER
The evidence of the state tended to show that Mary Pratt, on the evening of October 5, 1890, came to the city of Burlington from the village of Winooski by horse-car with one Albert Gonyeau, to whom she was then engaged to be married and whom she married a few days later; that they started to return to her home in Winooski, walking along the highway called the lower road, until they reached the southeasterly corner of Athletic Park, in Burlington, where they turned from the lower road to pass along the easterly end of the park to go towards another highway running nearly at right angles with the first and leading past the park to and across the railroad track, intending to go to the home of Mary on Winooski Flats by way of the railroad track; that by the last named route they could reach their destination by travelling a considerably less distance than by the lower road.
The evidence of the state further tended to show that there was a gate for the passage of teams, located in the easterly end of the park, and that after Gonyeau and Mary had passed the gate, then partially ajar, going towards Winooski, the respondents, Wilkins and Blow, and one Philip Bedard, simultaneously came out of the park through the gate in a menacing manner; that one of them in the presence of the other two said to Gonyeau, "Get out of here, you" * * * * that a struggle then ensued, during which two of the assailants respectively armed themselves with a piece of board and scantling, Gonyeau being struck upon the head with the scantling, which cut through his hat and inflicted a wound upon his head; that during the struggle Mary started to run away from the scene of the affray in the direction they had just come, whereupon one of the assailants struck her in the chest and clinched her, throwing her upon the ground; that Gonyeau frequently shouted "police" during the entire time he remained at the park, which he estimated to be from five to ten minutes; that he was powerless to repel his assailants, and believing that he must soon be overpowered, ran to William Couture's house, situate on the lower road and thirty-six hundred feet distant, leaving Mary struggling with her assailant, who threw her upon the ground; that Gonyeau immediately returned to the park from Couture's, running the entire distance, and bringing with him a party of men and boys and a special policeman, Brunell, and that Gonyeau and the party searched the interior of the park to find Mary and the assailants, but without avail.
The state's evidence further tended to show that after Gonyeau had thus left the park, and before his return thereto, the three persons seized Mary and each in turn against her will, ravished her, while the other two held her, one by the arms and the other by the legs; and that as soon as liberated Mary went to the house of her sister's husband, one Edward Laundry, living on North Winooski Avenue in Burlington and westerly from the horse-car barn, and that she and Laundry soon started on foot for Winooski. The evidence also tended to show that the three persons were the respondents Wilkins and Blow, and Bedard.
The evidence of the state further tended to show that the crime was committed about half-past seven in the evening of October 5th; that Bedard, Wilkins and Blow on the following day each admitted being together from about half-past six till about half-past eight o'clock that evening at the house of one George Wilkins, and the respondents so testified, and that they were together till about ten o'clock, and that they were not at Athletic Park at all that evening.
The respondents as part of their defence set up an alibi and introduced evidence tending to show that they and Bedard were all three at the house of one George Wilkins, father of the respondent, Frank Wilkins, which was on Hyde street, from about five minutes past seven till about twenty-five minutes past eight o'clock that evening, and that Wilkins and Bedard were there from about six o'clock, and thus stated and claimed in their opening statement to the jury before any evidence was introduced by either party.
The evidence of the state tended to show that a few minutes past seven o'clock on that night, Bedard, Wilkins and Blow were seen by one Eben Johnson and wife, who lived on Hyde street, but a short distance from the park, passing by and around their house and going in the direction of the park; that about twelve to fifteen minutes past seven o'clock several persons, including one Charles Spaulding, saw three young men at the intersection of Hyde street with North Winooski avenue, which was lighted by an electric light, standing but a short distance from the intersection; that the junction of the streets is nearly opposite the southwesterly corner of the park and nearly opposite Spaulding's hide-house, so-called, which is about five hundred and forty feet from the corner of the park where Gonyeau and Mary turned from the lower road, and that the horse-car barn herein referred to is about five hundred and seventy feet from Hyde street corner on North Winooski avenue, and westerly therefrom; that the three persons were soon after seen starting from Hyde street corner along the lower road towards the southeasterly corner of the park, and were soon thereafter seen by Gonyeau and Mary, coming behind them near the southeasterly corner; that Spaulding recognized and spoke to Bedard near the hide-house, and that the three persons were recognized by Gonyeau and Mary as the three persons who sprang out of the gate.
There was no direct evidence introduced by the state tending to show where Bedard, Wilkins and Blow went after the commission of the crime till about half-past eight, when they were seen on Hyde street, coming from the direction of their homes, near the intersection with North Winooski avenue; that from there they went directly to the horse-car barn, situate about five hundred and seventy feet westerly from the corner, where they remained a short time, then went to the vicinity of Trick's meant market and returned to the horse-car barn and remained till about ten o'clock. But the claim of the state on argument from the whole case was, that after the commission of the crime the respondents and Bedard went to the hill on the south side of and separated from the park by the lower road (upon which elevation were the Catholic cemetery and the old French church; the cemetery being bounded by Winooski avenue, or lower road, and westerly by Hyde street), and from thence to the house of Wilkins, which was southwesterly therefrom on Hyde street.
I. The testimony of Gonyeau, Brunell and others as to hearing shouts by unknown persons from the vicinity of the old Catholic church on the evening of the alleged rape, was properly admitted. The expressions were of a similar character to those made by the assailants of Gonyeau and the Pratt girl at the park earlier in the evening, which tended to show that they were made by the same persons. The old church was in the direction of Wilkins' house, in which the respondents claimed to have passed that evening. The evidence tended to show the direction which the assailants took after the outrage had been committed. The statement claimed by the state to have been made by respondent Wilkins next day to the witness Davis was that he had heard from one West that a rape had been committed, and that it was said that the boys ran up the hill afterwards. The evidence was not admitted as a part of the res gestae, but as a circumstances, in connection with other evidence, tending to identify the respondents as the guilty parties.
II. The state's witness, Mary Pratt, testified that she knew and recognized respondent Bedard, and that he spoke to her after the outrage had been committed. Respondents' counsel objected that the testimony of the witness did not show that the conversation between herself and Bedard was in the hearing of the other two respondents. A reference to the exceptions shows that this objection was not well founded:
Q. Who came through the gate with you?
A. Bedard.
Q. Where were the other two?
A. The other two entered the gate also.
Q. When you came through the gate with Bedard, as you say, did you come to where the electric light was shining?
A. Yes, sir.
Q. Where did the others come to?
A. They came, the three.
Q. When you came into the electric light did you recognize any of the boys?
A. Yes, sir.
Q. Which one did you recognize?
A. Bedard.
The witness then stated what Bedard said to her. We think the evidence clearly tended to show that the witness and the three respondents were all in each other's presence, so that Wilkins and Blow were near enough to have heard the remarks of Bedard to the witness and were presumed to have heard them. Boutelle v. Westchester Fire Ins. Co., 51 Vt. 4.
III. It was stated in the opening argument of respondents' counsel that the state's witness, Mary Pratt, made no complaint of the rape upon her to any person until the following Tuesday, when she made it to the chief of police Dumas, and that from this fact it would be claimed that no...
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