State v. Warner , 69 Vt. 30 ( 1895 )

Munson, J.

The mother of the child alleged to have been assaulted was called to establish the fact that an immediate complaint was made. In spite of the efforts of counsel and court, and evidently from a failure to comprehend the limit of admissibility, she interjected some improper statements regarding the complaint. But the only part of her testimony covered by an exception was a direct affirmative answer to the question whether the child complained of having been ill-treated by anybody. The respondent also excepted to what the court charged in regard to this testimony; but his present contention is that the jury should have been told to disregard the improper portions of it. There was no error in the charge as given, for the court referred to the testimony merely as evidence that a complaint was made. The respondent cannot complain of the omission referred to, for there was no exception to a failure in that respect. He would undoubtedly have had the benefit of such an instruction if it had been suggested.

The child claimed that the assault was made in one of several sheds in a certain locality, and the state produced a witness who testified that he examined these sheds just after the assault was alleged to have been committed, and found in one of them the tracks of a man and a child. The court was clearly justified in referring to this as an item of testimony bearing upon the issue.

The State’s Attorney testified to certain material statements of the respondent, which thelatter denied havingmade. In commenting upon this denial in his argument to the jury, the State’s Attorney said in substance that aman who would do that would stop at nothing. This argument was based .upon the testimony, and cannot be held a legal error. The Attorney had a right to argue upon the supposition that his own testimony might be found true, and that of therespondent a'deliberate perjury. Nor was the respondent entitled to a charge that if there was any doubt as to what passed between him and the State’s Attorney, his own version must be adopted.

The respondent filed a motion in arrest of sentence, and that the verdict be set aside. The motion was based upon matters outside the record, and was supported by affidavits. The case comes up with the affidavits attached to the motion, and without any finding of facts by the court. A motion in arrest can be sustained only for matters apparent of record. Walker v. Sargeant, 11 Vt. 327. A motion to set aside a verdict will not be heard in this court on affidavits. Mullin v. Rowell, 56 Vt. 301.

Judgment that respondent takes nothing by his exceptions.