Usher v. Severance

Watson, J. The plaintiff contends thg,t since the record does not show that any evidence was introduced touching the value of the bicycles stolen, the presumption is, that their value was only such as to make the offence petit larceny, and that therefore the officer had no authority in law to arrest the boy without a warrant therefor. However, the record does not negative the introduction of such evidence, and this Court cannot assume that none was introduced. Brownell v. Troy & Boston R. Co., 55 Vt. 218; Armstrong v. Noble, 55 Vt. 428. Every presumption is to be made in favor of the judgment below which is not positively inconsistent with the record. Campbell v. Patterson, 7 Vt. 86; Prior v. Wilbur, 63 Vt.. 407, 22 Atl. 74. It cannot be said, then, on the record, that the bicycles stolen were not of sufficient value to make the stealing of them a felony; and if it be a felony, the defendant as chief of police, if he had reasonable cause to suspect that the felony had been committed by the boy, had a right to arrest him without a warrant therefor. State v. Shaw, 73 Vt. 149, 50 Atl. 863. The record shows that the plaintiff submitted seven different requests to charge; that the court refused to charge as thus requested; “and to the refusal of the court to so charge the jury, the plaintiff was allowed an exception.” That an exception like this to such a refusal to charge is too general to be available, has been held so many times that a citation of authorities is unnecessary. The court charged the jury as shown in the statement of the case, in paragraph marked (1), and “The plaintiff objected to the. charge as thus given, and was allowed an exception.” This exception is sufficient only in case the entire portion of the charge covered by it was erroneous. And that it was not, we need to notice only the first sentence in the paragraph: “It [529] was the right of the defendant as a police officer with his assistant officers, to question the Meany boy concerning the whereabouts of the bicycles supposed to have been stolen, and to question him as to his guilt or innocence in the premises, and it was the right of the Meany boy to answer such questions if he chose, and the defendant would incur no liability in such case.” Since this part of the charge correctly stated the law applicable to the case, the whole of the charge within the exception taken was not unsound, and the exception avails nothing. State v. Sargood, 77 Vt. 80, 58 Atl. 971; Needham v. Boston & Maine Railroad, 82 Vt. 518, 74 Atl. 226. An exception was saved to the further charge, "That the plaintiff’s declaration in effect charges a crime upon the defendant — it charges assault and battery, which is a crime. The law raises in behalf of the defendant a presumption of innocence, and this presumption must be treated by you as a piece of evidence in favor of the defendant throughout the case and continues until it is overcome by evidence of the plaintiff.” Exactly the same question was raised by an exception to the court’s refusal to charge in accordance with a request setting forth in substance the same principle of law, in McKinstry v. Collins, 76 Vt. 221, 56 Atl. 985. The holding there that the request was sound in law and should have been complied with, is full authority here for the charge given. See also In re Cowdry’s Will, 77 Vt. 359, 60 Atl. 141, 3 Ann. Cas. 70. Mrs. Usher, the wife of the plaintiff, was used by him as a witness in the opening case. She testified to being in the police station on the evening in question, but that she was not there, until after her husband left. She was not asked by the plaintiff, and he introduced no evidence, as to her calling Mr. Phelps and some of the other officers names on that occasion. The plaintiff introduced evidence of what was said at the police station by the officers and the plaintiff and the father of the boy, but did not include what was said by other relatives of the boy. Thomas Bagley, a witness called by the defendant, was allowed to testify, subject to exception, that during the time which preceded the leaving of the station by the plaintiff, "Mrs. Usher called Mr. Phelps a God damned bastard and that we were all a damned pack of rogues.” In rebuttal, the plaintiff offered to show by Mrs. Usher and by other wit [530] nesses that she did not make those remarks. The offer was excluded and exception saved. The defendant’s evidence tended to show that the plaintiff and other relatives of the Meany boy, including Mrs. Usher, in the station house, created a disturbance by boisterous, profane, and vulgar language, and called the defendant and other officers indecent names, and that the defendant directed them to cease their disturbance or leave the station house; that the plaintiff and such' other relatives continued the disturbance aforesaid and refused to leave, whereupon the defendant lightly placed his hand upon the plaintiff, led him to the door, and the plaintiff walked out, etc. Such being the tendency of the defendant’s evidence and the reason given for expelling the plaintiff from the station house, it was clearly within the right of the plaintiff to show in rebuttal that such disturbance did not take place in whole or in part. The evidence offered was along this line, and to exclude it was harmful error. The record does not show the ground of the plaintiff’s objections and exceptions to the testimony of defendant’s witness Phelps, that on the day in question, a boy named McDonald had been arrested, charged with stealing money, and- that he was detained in connection with the larceny of bicycles; and that the Meany boy. was held by the officers at the station house and examined in regard to the offences committed by the McDonald boy. It cannot be said that this evidence was immaterial and irrelevant in any view of the case, hence these exceptions are without force. Herrick v. Holland, 83 Vt. 502, 77 Atl. 6; Townshend v. Townshend, 84 Vt. 315, 79 Atl. 388; Spencer v. Potter’s Est., 85 Vt. 1, 80 Atl. 821. The evidence offered by plaintiff in rebuttal to show that the Meany boy was in fear of the officers when he answered the questions asked him by them, supposed he was obliged to answer them, etc., and that because of such fear his answers were not voluntary, was properly excluded. It had no bearing on the rights of the plaintiff in this case. In arguing the case before the jury, defendant’s attorney made a certain statement touching the evidence. The record-states, “The plaintiff objected to said argument of defendant’s counsel and was allowed an exception.” No ground of the objection was stated,.and hence the ruling, if any in fact made, [531] does not appear. To be available, such objection must point out the language deemed improper, and state specifically the ground. of the objection, so the court may know upon what it is called upon to rule. ' Thomp. Trials, sec. 962, par. (2); Dimon v. N. Y. C. & H. R. R. R. Co., 173 N. Y. 356, 635, 66 N. E. 1, 628. Judgment reversed and cause remanded.