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statement or did any act at that time that had ) It appeared that the deceased and the the
The a petticoat was properly excluded, as calling for respondent were husband and wife. a conclusion.
state called as a witness one Mrs. Delvina [Ed. Note. For other cases, see Criminal Hastings, and offered to show by her that Law, Cent. Dig. $$ 1035-1039, 1041-1043, she and her husband lived on a farm at 1048-1051; Dec. Dig. $ 448.*]
Sunapee, N. H., where the respondent and 6. CRIMINAL LAW (8695*) - TBIAL - RECEP her husband lived for four or five years; TION OF EVIDENCE.
Where a question objected to contained that the witness and her husband were several elements and one of them was improper, there as tenants from the fall of 1907 about it was not error to exclude the entire question. a year; that while there she heard the re
[Ed. Note.--For other cases, see Criminal spondent make threats against the life of Law, Cent. Dig. 8 1637; Dec. Dig. 8 695.*]
her husband, hearing her say she would kill 7. WITNESSES ($ 277*)-CROSS-EXAMINATION. him if he did not do certain things. The
Where, in a prosecution for homicide, accused had been permitted to testify concerning court asked, “What things?” The state's her relations with deceased, and that, when ac- attorney answered, “That had to do in part cused and deceased left C. together, accused sup with the leasing of the farm and their own posed defendant was married to B., questions private affairs, not all of which she heard; as to why B. did not come back and whether accused knew of deceased ever getting a divorce that the respondent is a loud talking wofrom her was proper cross-examination.
man; that she frequently became angry with [Ed. Note. - For other cases, see Witnesses, her husband, and I offer to show also that Cent. Dig. 88 925, 979–984; Dec. Dig. $ 277.*) the witness has seen her seize hold of him 3. INDICTMENT AND INFORMATION (8 189*)— by the coat collar and yank him around, INCLUDED OFFENSES-MURDER — INVOLUN
put him in a chair and on the lounge, in TARY MANSLAUGHTER.
P. S. § 2337, provides that, under an in- connection with threats she heard her make; dictment for murder, defendant may be con- that these threats were in summer of 1908." victed of murder in the first or second degree, Objection was made to this offer (1) because or of manslaughter, according to the proofs, it is an attack upon the character of the and section 5697 declares that, if the evidence in the jury's opinion is insufficient to convict of respondent, which is not in issue; (2) be murder, a person arraigned and put on trial for cause it does not tend to show her mental that offense may be convicted of manslaughter condition at the time of the alleged killing; if the evidence proves that offense. Held, that where accused is indicted for murder he may be (3) “because not the whole of the conversaconvicted of involuntary manslaughter under tion can be stated, and, if the whole, might such indictment.
be perhaps a different color or interpreta[Ed. Note. For other cases, see Indictment tion would be given to what she said;" and and Information, Cent. Dig. & 593; Dec. Dig. |(4) because it opens up a collateral issue, $ 189.*] 9. CRIMINAL LAW (8 936*)-New TRIAL-SUR- and makes it necessary to try each one of
these alleged occasions to ascertain whether PRISE.
Where accused was indicted for murder in she had the intent at the times she made the first degree, he was bound to know that it the threats or not. The state disclaimed any was the duty of the court to charge on every branch of the case included in the indictment purpose of attacking her character, or of and supported by the evidence, and hence the going into collateral matters. fact that the court charged on involuntary man Addressing the state's attorney, the court slaughter was not surprise for which he could said: "You offer to show that while she was obtain a new trial.
[Ed. Note. For other cases, see Criminal residing there at a certain time this witness Law, Dec. Dig. & 936.*]
heard her make a threat to kill her hus
band?" To which the state's attorney anExceptions from Franklin County Court; swered: “That is it. That is all we want to Willard W. Miles, Judge.
show." The court: "Then come right to that Josephine Averill was convicted of man-point.” An exception was saved. Subject slaughter, and brings exceptions, and peti- to the objection made and the exception tions for new trial. Affirmed, and petition taken, all inquiry respecting threats was refor new trial dismissed.
ceived. The witness testified that in the Argued before ROWELL, C. J., and MUN- summer time of the year of 1908, on the SON, WATSON, HASELTON, and POW- place where they all lived together, she ERS, JJ.
heard the respondent make threats to her John G. Sargent, Atty. Gen., and George husband, Frank C. Averill. The witness M. Hogan, State's Atty., for the State. M. was then asked: “What was the threat, and H. Alexander and C. G. Austin & Sons, for what did you hear her say?” The witness respondent.
answered: "She said she would kill Frank
if he didn't do so and so, when she was WATSON, J. The indictment on which re- angry.” The state objected to the answer, spondent was tried contains two counts, and moved to strike out "the part about each charging her with murder in the first being angry." The court ruled, granting the degree, by shooting Frank C. Averill at St. motion unless the respondent wished to Albans on the 20th day of October, 1910. have that part of the answer stand; and, Verdict, guilty of manslaughter, and judg- no objection being made to striking it out, ment thereon.
the motion was granted. The witness fur
STATE V. A VERILL
ther testified that she heard the respondent it has reference to the general character remake threats twice. The question was ask- stricted to the trait which is in issue. It ed: "Did you hear anything else she said has no reference to evidence otherwise havat the time she made the threats?” Here ing a legitimate bearing on the guilt of the the respondent's attorney objected, saying: accused, and thus offered. "If they undertake to show the entire con The third objection, “because not the versation, we do not object, but I take it whole of the conversation can be stated," they want to show a part of it and leave had reference to the state's attorney's anout a part, and we object to it.” To which swer to the court's inquiry, "What things?" the court replied: "You may call out in The answer so far as need be particularly cross-examination such of the conversation noticed in this connection was “that had to as took place." No objection was made do in part with the leasing of the farm and nor exception taken to this course of proce their own private affairs, not all of which dure. The witness then testified that the she heard." It had no reference to the witthreat she heard the respondent make on
ness not stating in direct examination all the second occasion was: "I will kill you, she did hear of the conversation. That Frank, if you don't put them out of the question was not raised until, as before seen, house." Under the same offer, objection, near the close of the direct examination of ruling, and exception as were made respect the witness, and then to the ruling (that the ing Mrs. Hastings' testimony, her son, also respondent's counsel might call out in crossa witness for the state, was permitted to examination such of the conversation as took testify that he heard the respondent threaten place) no exception was taken. to shoot her husband in June or July of
 The fact that the witness did not hear 1908. But, before this evidence was offered all the respondent said does not render her and received, the respondent's counsel had
testimony incompetent. Commonwealth -V. called out from the state's witness evidence Pitsinger, 110 Mass. 101; Commonwealth. v. tending to show love and affection on the Taylor, 129 Pa. 534, 18 Atl. 558. part of the respondent for her husband,
 Mrs. Lucina Bird, a witness for the "and that they had been loving and affec
state, testified in direct examination, among tionate from their early acquaintance."  It was urged in argument that the other things, that, after the homicide, she
was present with the respondent in an outthreats of the respondent thus shown were conditional, and that, in order to make them house, to which they had gone during the conditional, and that, in order to make them time that the prosecuting officers and the admissible in evidence, it was incumbent on the state to show that the conditions form- police officers were at the respondent's house ing the basis had been complied with. to arrest her, the afternoon of October 22d; Whether this is so or not we are not called that while there she saw the respondent reupon to consider, for the objection to the move the petticoat she had worn the night evidence was not put upon this ground. In of the shooting, and put it into a can, and cases of homicide, previous threats by the cover it with papers, narrating what the accused to kill the deceased are always held respondent said at the time of doing so; admissible to show the state of the mind of and that the witness afterwards pointed out the accused, his intent to kill, and his mal- the petticoat to the police officer who proice against the deceased at the time of the duced it in court. In cross-examination the homicide. The remoteness of the threats witness was asked: “Was there any statein point of time does not affect their comment or expression by her (respondent) or petency. It goes only to the weight of the any conduct on her part in connection with evidence. State v. Bradley, 64 Vt. 466, 24 that act-the removal of the petticoat and Atl. 1053; Id., 67 Vt. 465, 32 Atl. 238; Crib-putting it into the can—that had the appearbo v. State, 86 Ala. 613, 6 South. 109; Reda ance of a desire to hide the petticoat?” The V. State, 68 Ala. 492; State v. Hoyt, 46 question was excluded on the ground that it Conn. 330; Commonwealth v. Holmes, 157 called for a characterization of the act. So Mass. 233, 32 N. E. 6, 34 Am. St. Rep. 270; far as anything appears, the witness could Commonwealth v. Goodwin, 14 Gray (Mass.) and did sufficiently detail and describe all 55; Commonwealth v. Quinn, 150 Mass. 401, that the respondent said and did at the time 23 N. E. 34; State v. Porter, 213 Mo. 43, and place named to enable the jury to form 111 S. W. 529, 127 Am. St. Rep. 589. And, intelligent conclusions from them. The consince the matter of such threats had such clusions of the witness called for by the a connection with the issue as allowed them question were therefore properly excluded. to be given in evidence, no collateral issue Clifford v. Richardson, 18 Vt. 620; Cavendish was thereby raised. Comstock's Adm'r V. v. Troy, 41 Vt. 99; Bain v. Cushman, 60 Vt. Jacobs, 84 Vt. 281, 78 Atl. 1017.
343, 15 Atl. 171; Bishop v. Readsboro Chair  Nor within the meaning of the law Mfg. Co., 85 Vt. -81 Atl. 454. It is was the evidence in its declared purpose an urged, however, that the question called for attack upon the respondent's character. the appearance of the respondent at the
 The rule that the prosecutor cannot time of her arrest, and hence it was proper, impeach the character of the accused until even though it called for the judgment or the latter has adduced evidence to support | opinion of the witness. An analysis of the
question asked shows it really to contains were married, or that the respondent did three co-ordinate questions disjunctively con- not know at the time of the conversation nected, only the first of which need be about Blanche, that she was not his wife. stated. It amounted to this: Was there It appears that the court permitted the any statement by the respondent in connec- questions as proper cross-examination. We tion with the removal of the petticoat, and take it to be true, as stated by the court putting it into the can, that had the appear when objection was made to the former ance of a desire to hide the petticoat? The question, that the respondent had been showwitness having narrated what the responding her relations with the deceased, and had ent said in that connection, it was the pro- offered letters bearing thereon. The fair vince of the jury to say what those sayings construction of the bill of exceptions is that, indicated.
when these questions were asked, the re This element of the question being im- spondent had given testimony in cross-ex proper, it was not error to exclude the entire amination without objection tending to show question. Vaillancourt v. Grand Trunk Ry. that when she and the deceased left CamCo., 82 Vt. 416, 74 Atl. 99.
bridge together, and went to the Boston  The respondent testified in her own boarding house to live, she supposed that he behalf. In cross-examination, her attention and Blanche were husband and wife, though being directed to a time previous to any she afterwards knew they were not.
The about which she had given testimony in questions objected to were along the same chief, and to an occasion when she left the line--to elicit further testimony bearing upplace in Cambridge, Mass., where she had on the respondent's relations with the de been working for the deceased and a wo- ceased, and we cannot say from the bill of man named or called Blanche Averill, she exceptions that it was not within legitimate testified that the deceased and Blanche liv- cross-examination. Although for the pured as husband and wife, and she then sup- pose of showing the tendency of the eviposed they were married to each other, dence, and the charge of the court, and though she afterwards knew they were not; the exceptions thereto, a certified transcript that after the respondent had been there of the entire case and the exhibits are reabout six or eight weeks Blanche went away ferred to and made a part of the bill of exwith the understanding that she probably ceptions, they are not made controlling, and would return before a great while, and the the questions are to be determined upon the respondent testified that Blanche did not bill. Slack v. Bragg, 83 Vt 401, 76 Atl, come back there. This was in answer to 148; Comstock's Adm'r v. Jacobs, cited above. the question: "How long after that did she The exception to the Attorney General's (Blanche) and he live together as husband argument in criticism of the argument of reand wife?" The respondent was then asked spondent's counsel in the treatment and by the Attorney General: “Why didn't she characterization of the state's witnesses, and come back there?" This question was ob- the testimony given by them, is without jected to as not cross-examination. There force. That part of the Attorney General's upon the court said to respondent's attor- argument to which the exception points, conney: "You have been showing their relations sidered in the light of his explanation when and have offered these letters to show their the exception was noted, if intemperate at relations. In that view of the case, do you all, was not so to an extent warranting a insist this is not cross-examination ?" The reversal. Besides, the arguments of re attorney answered that he did. The ques- spondent's attorneys, as well as that of the tion was allowed and exception noted. The Attorney General, were addressed to the jurespondent answered, “Because there was ry, and, if the argument of the latter was nobody there, we had gone away.” In unwarranted as now urged, the jury knew further cross-examination she was asked: it, and it could do the respondent no harm. “Then within two days after this time, after Marshal v. Dalton Paper Mills, 82 Vt. 489, the woman you understood to be the man's 74 Atl. 108, 21 L. R. A. (N. S.) 128. wife left the house, everything was sold,  The respondent admitted killing the and you and he had gone to the Boston deceased by shooting, but denied that it was boarding house to live?" and answered, intentional, and claimed it was purely acci. “Yes.” She also testified without objection dental. The court instructed the jury as to on cross-examination that she and her hus- the law of involuntary manslaughter. Reband occasionally talked about Blanche, but spondent's counsel excepted generally to the that she could not remember when this last charge regarding that offense, stating their occurred. Later, in cross-examination, she theory of the prosecution all through the was asked whether she ever knew of his trial had been that it was a case of a mêlée getting a divorce from Blanche. This was in which the shooting was done in the heat objected to as not cross-examination. The of passion, and that at no time did they court ruled that she might answer "Yes or cross-examine witnesses or put in testimono," and an exception was saved. She an. ny on the theory of involuntary manslaughswered, "No." No evidence was offered tend-ter, nor so argue to the jury. “A lawful act
STATE V. AVERILL
in law an unlawful act” (State v. Dorsey, I lose divers advantages which he should oth118 Ind. 167, 20 N. E. 777, 10 Am. St. Rep. erwise have, yet it is nothing more than 111); and we think the testimony given by the manner of the fact, and not the subthe respondent tended to show that the stance of the fact, for the substance of the shooting, though unintentionally done, was fact is the killing, and when the substance the result of negligence by her in handling of the fact, and the manner of the fact the gun, indicating on her part a careless- are put in issue together, if the jurors find ness or recklessness incompatible with a the substance and not the manner, judgment proper regard for human life, which, if es- shall be given according to the substance. tablished, would in law render her guilty of In MacKalley's Case, 9 Co. 65, the indictinvoluntary manslaughter. It cannot be said ment was for murder in killing a serjeant that the charge respecting that subject was of London, and on trial the jury returned a wholly unsound (see State v. Center, 35 Vt. special verdict, submitting to the justices 378), and defect in any particular part of it of the court whether thereon the prisoners is not reached by such general exception. were guilty of murder or manslaughter. By Needham v. Boston & Maine Railroad, 82 Vt. the King's command all the judges of Eng518, 74 Atl. 226. This confines our consid- land were ordered to meet together to reeration under that exception to the conten- solve what the law was upon the said rection that thus to submit the case to the jury ord; and accordingly all the judges of Engwas error, because (respondent says) it did land and Barons of the Exchequer, met not conform to the indictment which did not together and heard counsel upon this special furnish her with a description of the charge verdict as well of the prisoners as of the of involuntary manslaughter.
King. Lord Coke says the matter was very The question, then, is whether a person well argued by counsel learned on both sides indicted for murder may be convicted of in- at two several days, and that divers excepvoluntary manslaughter where the facts jus- tions were taken to the indictment and to tify it, a question, so far as we are aware, the verdict also. One exception to the vernever before raised in this state. At com- dict was for that the jurors had not found mon law felonious homicide by killing an- the special matter contained in the indictother man was divided into murder and ment, but other matter, and judgment could manslaughter-murder, “when a person of not be given against the prisoners upon sound memory and discretion unlawfully that indictment. To this it was answered, killeth any reasonable creature in being, and and in the end resolved, that there was sufunder the King's peace, with malice afore- ficient matter in the verdict pursuant to the thought either express or implied"; man
man- | matter contained in the indictment upon slaughter, “the unlawful killing of another which the court ought to give judgment of without malice either express or implied; death against the prisoners, notwithstanding which may be either voluntary, upon sudden the said variance, because the warrant which heat; or involuntary, but in the commission the serjeant had to arrest the defendant was of some unlawful act." 4 Black. Com. 190– but circumstance, which it was not neces191, 195. In Salisbury's Case, 1 Plow. 101, sary to be precisely pursued in evidence, to where John Vane Salisbury was indicted of be found by the jury, that the variance murder upon malice prepense, the jury found urged was but circumstance, and a variance that he killed the man, but not of malice from the circumstance of the indictment is prepense, and so acquitted him of the mur- not material; and “so if one is indicted of der, and found him guilty of manslaughter. the murder of another upon malice prepense, Whether he should be utterly acquitted by and he is found guilty of manslaughter, he this verdict, or whether the court should shall have judgment upon his verdict, for give judgment upon him that he should be the killing is the substance and the malice hanged for the manslaughter, or whether the prepense the manner of it; and, when the verdict should serve only against him for an matter is found, judgment shall be given indictment of manslaughter, and be of no thereupon, although the manner is not preother effect, or what else should be done cisely pursued”-citing Plow. Com. 101. Thus with him, was privately considered and de- it was established at common law that a bated by the bench among themselves. The person indicted for the murder of another opinion of the whole court was clearly that upon malice prepense may be found guilty they might give judgment upon him to be of manslaughter, because it does not differ hanged for the manslaughter; for they held in kind or nature of the offense, but only that the jury might give a verdict at large, in the degree not in substance of the fact and find the whole matter, that, when he from murder, but only in the ensuing cirwas arraigned for killing a man upon mal-cumstances, a variance as to which does not ice prepense, the substance of the matter hurt the verdict. And to this effect is the was whether he killed him or not, and the law stated by Sir Mathew IIale, and by Sermalice prepense was but matter of form or jeant Hawkins, in their respective Pleas of the circumstance of killing. And although the Crown. 1 Hale's P. C. 449, 466; 2 Hawk. the malice prepense makes the fact more P. C. c. 47, § 4. See State v. Scott, 24 Vt. 127. odious, and for this cause the offender shall It is said in State v. McDonnc>l, 32 Vt. 491,
that the law of manslaughter is very cor- | kild, and tho the parties were in sport, rectly defined by Chief Justice Shaw in the yet the act itself, the thrusting at his seryWebster Case, 5 Cush. (Mass.) 295, 52 Am. ant, was unlawful, and consequently the Dec. 711, thus: “Manslaughter is the unlaw-death that ensued thereupon was ful killing of another, without malice, and slaughter, and was accordingly found and may be either voluntary, as when the act adjudged, which I heard.” 1 Hale's P. C. is committed with a real design and pur-471-473. It is in point to note in passing pose to kill, but through the violence of that excusable homicide as distinguishable sudden passion, occasioned by some great from justifiable homicide, whether per inprovocation, which in tenderness for the fortunium or se defendendo, was formerly frailty of human nature the law considers considered as involving some degree of legal sufficient to palliate the offense; or invol- blame or punishment, and so in such cases untary, when the death of another is caus- the verdict, though it excused the death, it ed by some unlawful act, not accompanied did not excuse the forfeiture of goods, nor with any intention to take life.” Speaking was the prisoner to be absolutely discharged of the latter branch of manslaughter, Sir out of prison, but bailed till the next term Mathew Hale says: "In these cases, to speak or sessions to sue out a pardon and writ of once for all, the indictment itself must find restitution of his goods as a matter of course the special matter, or in case the indictment and right, only paying the expense thereof; be of murder or manslaughter, and upon the that in later times to prevent this expense trial it appears to the jury it was involun- in such cases the judges usually directed tary (as by misfortune, or in his own de- a general verdict of acquittal; and still fense), the jury ought to find the special later, by Acts of Parliament, all practical matter, and so conclude, et sic per infor- distinction between excusable and justifitunium, or se defendendo, and not generally, able homicide was wholly done away. 2 that it was per infortunium, or se defend-Hale's P. C. 477, 478; 4 Steph. Com. 57. Reendo, because the court must judge upon garding the form of the verdict, Serjeant the special matter, whether it be murder, Hawkins (vol. 2, c. 47, s. 4) says: "That It homicide, or per infortunium, or se defend hath been adjudged, that where the jury endo, and the jury is only to find the fact, find a man not guilty of an indictment or and leave the judgment thereupon to the appeal of murder, they are not bound to court; and in such case the prisoner must make any inquiry, whether he be guilty of not plead the special matter, and so justify, manslaughter, &c.; but that if they will, but must plead not guilty, and the special they may, according to the nature of the matter must be found by the jury,
evidence, find him guilty of manslaughter for upon the special matter found the court or homicide se defendendo or per infortunimay give judgment against the conclusion um; for the killing is the substance, and the of the verdict, as that the fact is manslaugh- malice but a circumstance, a ter, though the conclusion of the verdict to which hurts not the verdict. Yet the be per infortunium or se defendendo." And books seem to make this difference, that by way of illustration his lordship refers to where the jury find the defendant guilty of a case very much in point: "Sir John Chi- manslaughter on an indictment of murder, chester, and his man servant, whom he very they may give their verdict generally, withwell loved, were playing together. The man out setting out any of the circumstances had a bedstaff in his hand, and Sir John has of the fact; but that they shall not be rehis rapier in the scabbard. Sir John, ac-ceived to find him guilty generally of homicording to the usual sport between them, cide se defendendo, or per infortunium; but bids his man guard his thrust or pass, which must set out the whole circumstances of the he was making at him with his rapier, in fact, and in the conclusion show of what the scabbard. The servant with the bed crime they find the defendant guilty, wherestaff breke the thrust, but withal struck off in if they be mistaken, it is said, that the the chape of the scabbard, where by the court may notwithstanding gire such judgend of the rapier came out of the scabbard, ment as shall appear to be proper from the but the thrust was not so effectually broken, circumstances of the fact specially set forth." but the end of the rapier prickt the servant That both voluntary and involuntary manin the groin, whereof he died. Sir John slaughter are included in the crime of murChichester was for this indicted of murder, der, and a person indicted for murder may and tried at the King's bench bar, where be convicted of murder or of either species all this evidence was given; and it was of manslaughter, as the evidence may warruled: (1) That it was not murder, though rant, at common law, is held in the followthe act itself was not lawful, because there ing cases in this country: Conner v. Comwas no malice or ill will between them. (2) monwealth, 13 Bush (Ky.) 714; Buckner v. That it was not barely chance medley, Commonwealth, 14 Bush (Ky.) 601; Bush v. or per infortunium, because altho the act. Commonwealth, 78 Ky. 268; Powers v. State, which occasioned the death, intended no 87 Ind. 144; Pigg v. State, 145 Ind. 560, 43 harm, nor could it have done harm, if the N. E. 309; Watson v. State, 116 Ga. 607, 43