STATE OF VERMONT v. FROTTEN, 115 Vt. 146 (1947)

STATE OF VERMONT v. FROTTEN, 115 Vt. 146 (1947)
53 A.2d 52

STATE OF VERMONT v. HAROLD FROTTEN.

Supreme Court of Vermont.
Opinion filed May 24, 1947.

Prejudice in Argument to Jury.

1. A criminal conviction will be reversed on the ground of improper argument to the jury only when prejudice is affirmatively shown.

PROSECUTION FOR MURDER IN THE FIRST DEGREE. Trial by jury, Bennington County Court, Black, J., presiding. Verdict of guilty of murder in the second degree. Affirmed.

Reuben Levin for the respondent.

James S. Holden, State’s Attorney, and Clifton G. Parker,
Attorney General, for the State.

May Term, 1947.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

SHERBURNE, J.

The only exception relied upon is to the statement of the Attorney General in his argument to the jury that, “he organized riots, fomented fights,” and nothing is here claimed for the last two words of the statement. The objection made below and here was that the statement was not warranted by the evidence. The State, however, argues that the statement was warranted by the testimony of Dr. J. C. O’Neil, a witness called by the respondent, and who testified on direct examination that the respondent stated to him “that when he went to the Wrentham State School he didn’t like the place and didn’t get along well there and did everything he could to make trouble. He said he recognizedPage 147
his plight and started fights with the other boys and got the other boys fighting among themselves * * *”.

Whether an improper argument is of such a nature as to require a reversal depends upon the attending circumstances and there is little profit in comparing one case with another; and, assuming the impropriety, prejudice must affirmatively appear if the exception is to be sustained. State v. Parker, 104 Vt. 494,500, 162 A 696; State v. Schoolcraft, 110 Vt. 393, 396,8 A.2d 682.

The respondent argues that the first three words in the statement refer to riots as defined by statute in Massachusetts or as defined at common law, and charge the commission of an offense not disclosed by the evidence. We cannot assume that the jury knew of the technical definition of a riot at common law or in Massachusetts. They may have thought that a riot was simply disorderly behavior. That is one of the definitions given in Webster’s New International Dictionary. In this sense starting fights with the other boys and getting them to fight among themselves was “organizing riots”. Prejudice is not made to appear, and the exception is not sustained.

Only one other exception has been briefed, and that was waived at the hearing.

It is therefore considered that judgment ought to be and it isrendered upon the verdict. Let sentence be imposed andexecution thereof done.