Volume 130 — Vermont Reports

<bold>1. Partnership — Establishment</bold> Contribution of transitory services and substantial capital was insufficient to establish true partnership in commercial enterprise. <bold>2. Partnership — Establishment</bold> An essential element of a business partnership is an agreement among the parties to share in the profits and losses of the venture. <bold>3. Partnership — Establishment</bold> Claim to partnership interest in business operation was properly dismissed where defendants operated venture as sole owners, taking the profits and assuming the losses, and claimant had done neither, even though plaintiff had contributed capital and, from time to time, services. <bold>4. Joint Ventures — Elements</bold> A joint venture in a real estate project, while differing from a true partnership undertaking, has many of the legal incidents of a partnership. <bold>5. Deeds and Conveyances — Sole Title in a Joint Acquirer</bold> A single property may be acquired and owned jointly although title is taken in the name of only one of the parties, and a trust relationship is established in such a case. <bold>6. Trusts — Constructive Trusts</bold> Equity refuses to confine within the bounds of classified transactions its precept of a loyalty that is undivided and selfish, so that a constructive trust is a remedial device through which preference of self is made subordinate to loyalty to others. <bold>7. Frauds, Statute of — Applicability — Constructive Trusts</bold> Statute of Frauds was no defense against action to enforce a constructive trust with respect to property. <bold>8. Joint Ventures — Establishment</bold> Whether plaintiff loaned defendant's purchase money for property or transaction as a joint venture was a question of parties' intention. <bold>9. Appeal and Error — Power of Reviewing Court — Establishment of</bold> <bold>Facts</bold> Supreme court cannot supply an essential fact which cannot be established from the facts found by a lower court.<page_number>Page 64</page_number> <bold>10. Appeal and Error — Questions Considered on Appeal — Matter</bold> <bold>Not Briefed</bold> When question presented on appeal is fundamental to the rights of the parties, the court can and should, if necessary, decide the appeal upon considerations varying somewhat from those presented by appellant's brief. <bold>11. Evidence — Deadman's Statute — Applicability</bold> Statute disqualifying a party from testifying in his own favor when the other party is dead does not apply where there is more than one party on one side and not all of them are dead. 12 V.S.A. §§ 1602, 1603. <bold>12. Evidence — Deadman's Statute — Waiver</bold> Incompetency to testify under statute disqualifying a party from testifying in his own favor when the other party is dead may be waived by introducing evidence on and cross-examining the incompetent party on the subject involved. 12 V.S.A. §§ 1602, 1603.

<bold>1. Elections — Primary Elections — Law Governing</bold> Provisions relating to primary elections relate also to general elections both because of specific reference and also because, dealing with the same subject matter, they are to be taken as in <italic>pari materia</italic> with them. 17 V.S.A. ch. 9. <bold>2. Elections — Primary Elections — Nominations</bold> In order to qualify a political party to nominate candidates by convention, it is not necessary that the party have had a candidate for governor. 17 V.S.A. § 572(a).<page_number>Page 72</page_number> <bold>3. Elections — Primary Elections — Nominations</bold> The attainment of one percent of vote necessary to entitle political party to nominate by convention is to be determined by the voter interest generated and reflected by the balloting for the leading vote getter on the ballot under that party label measured against the statewide vote for governor. 17 V.S.A. § 572(a). <bold>4. Elections — Primary Elections — Nominations</bold> Political party which had a candidate in the last general election that polled more than one per cent and less than five per cent of the total votes cast statewide for the office of governor could properly nominate its candidates for a primary election by convention and have its candidates appear on the ballot. 17 V.S.A. § 572(a).

<bold>1. Escape — Attempt — Elements of Offense</bold> The offense of an attempt to escape from lawful confinement is committed when an act is done with intent to gain release from custody and the performance of that act is part of a series of events which would lead to the intended result if not interrupted. <cross_reference>13 V.S.A. § 9</cross_reference>.<page_number>Page 93</page_number> <bold>2. Escape — Attempt — Elements of Offense</bold> Where the evidence established all of the elements essential to constitute the offense of an attempted escape by showing defendant had hidden himself in a refuse barrel and was discovered when the barrel was emptied into a truck which was leaving the prison, defendant's motion for a directed verdict was properly denied. <cross_reference>13 V.S.A. § 9</cross_reference>. <bold>3. Pleading — Motion to Set Aside Verdict</bold> Where identity of accused was direct and certain and there was nothing to lighten the weight of the evidence in aid of reasonable doubt, the motion to set the verdict aside, as contrary to the evidence, was correctly denied.

<bold>1. "Certiorari" — Issuance of Writ</bold> A writ of <italic>certiorari</italic> issues only when there is no other adequate remedy at law and no other means of review is available. <bold>2. Taxation — Appeals — Nature of Appeals Statutes</bold> Statutes providing for appeals to Commissioner of Taxes and County Court, and Administrative Procedure Act, incorporated in tax appeal statutes, are procedural in nature, apply to pending appeals, and do not affect substantial rights. 32 V.S.A. §§ 4461-4468; 3 V.S.A. §§ 801-816. <bold>3. "Certiorari" — Existence of Other Means of Review</bold> Petition for writ of <italic>certiorari,</italic> formerly used to review tax appraisals due to lack of regular means of review, could not be maintained to review tax appraisal where recently enacted statutory review procedure existed, even though litigation was set in motion by listers' appraisal made prior to effective date of procedure provided by statutes. 32 V.S.A. §§ 4461-4468; 3 V.S.A. §§ 801-816.

<bold>1. Legislature — Apportionment — One Man, One Vote</bold> State requirements relating to apportionment of legislators are subject to the overriding concerns of the Equal Protection Clause and the "one man, one vote" principle. <bold>2. Legislature — Apportionment — Functions of Legislature</bold> Reapportionment is, in the first instance, a legislative responsibility. <bold>3. Legislature — Apportionment — Statutory Construction</bold> Actions of general assembly regarding reapportionment are entitled to the presumptions of justification and regularity accorded regular statutory enactments, and duty of supreme court is to<page_number>Page 359</page_number> measure and test such actions by the appropriate constitutional and statutory standards. <bold>4. Legislature — Apportionment — Statutory Construction</bold> It is the duty of the supreme court to review and test state reapportionment legislation which conflicts with federal law with an eye to preserving, as far as possible, the purposes expressed in the constitutional and statutory law of the state. <bold>5. Legislature — Apportionment — Population as Basis</bold> Federal case law declares population to be an approved basis for apportionment. <bold>6. Legislature — Apportionment — Town Lines</bold> Vermont constitutional preference for a representative, in the House of Representatives, from each town cannot be constitutionally implemented. Vt. Const. ch. II, § 13. <bold>7. Legislature — Apportionment — Population as Basis</bold> Reapportionment of state senate must be done on the basis of population, not as a federal requirement, but as a directive of the state constitution, thus senate bill which was passed by both houses and became law could not stand where bill did not reapportion senate on basis of population. Vt. Const. ch. II, § 18; <cross_reference>17 V.S.A. § 1903</cross_reference>; Acts 1971 Adj. Sess., No. 248 (<cross_reference>17 V.S.A. § 1881</cross_reference>). <bold>8. Legislature — Apportionment — Membership Requirement</bold> Where it was impossible to follow state constitutional requirements that there be thirty senators and that they be apportioned by county, and also achieve substantial equality within the Equal Protection Clause, it was clear that the thirty member requirement might have to yield to federal constitutional requirements. Vt. Const. ch. II, § 18. <bold>9. Legislature — Apportionment — Membership Requirement</bold> It would be appropriate to reduce state senate membership by one and keep thirty as the limit in size, only if that would bring about compliance with federal constitutional standard as to apportionment. <bold>10. Legislature — Apportionment — One Man, One Vote</bold> Under the Vermont Constitution, reapportionment of Vermont senate must meet the test of least disparity in the number of persons represented by each senator. Vt. Const. ch. II, § 18.

<bold>1. Legislature — Apportionment — Unacceptable Plans</bold> Proposed state senate reapportionment plan under which population per senator varied from 13.68% over-represented to 11.65% under-represented and under which there was a ratio of 1.29 to 1 between the largest and smallest district, was constitutionally unacceptable under recent federal case law. <bold>2. Legislature — Apportionment — Disruption of Election</bold> To prevent disruption in the election process already underway, equitable consideration justified holding impending election under constitutionally infirm reapportionment plan enacted by legislature, wherein alternative plan submitted to the court by legislative Apportionment Board also failed to meet constitutional standards. <bold>3. Legislature — Apportionment — County Lines</bold> In order for the Vermont senate, which the Vermont Constitution requires to be composed of thirty members apportioned on a<page_number>Page 366</page_number> county basis, to be apportioned according to the Equal Protection Clause and the "one-man, one-vote" principle as set forth in federal case and applied in decisions following it, county lines will have to yield. Vt. Const. ch. 11, § 18. <bold>4. Legislature — Apportionment — Functions of Legislature</bold> Legislative apportionment is primarily a matter for legislative consideration and determination.

<bold>1. Taxation — Inventory of Land — Purpose</bold> Purpose of statute requiring landowners to file an inventory of their land is to provide a means of disclosing the amount of taxable property held by a taxpayer, thereby enabling listers to make an appraisal, not to solicit the landowners' views as to the fair market value of the property. <cross_reference>32 V.S.A. § 4084</cross_reference>. <bold>2. Taxation — Inventory of Land — Notice of Rejection</bold> Plaintiffs who voluntarily filed with town a list of their properties, all of which were already on town lists, and the fair market values the plaintiffs set on such properties, were not entitled to notice by town of the fact that town had appraised the properties higher than the fair market value given them by plaintiffs, and plaintiffs could not successfully claim that statute requiring the filing of properties with town and requiring notice to landowners when the required inventory is rejected applied to plaintiffs. 32 V.S.A. §§ 4084, 4085. <bold>3. Taxation — Assessment — Effect of Appeal</bold> Landowners' grand list was completed, subject to correction or amendment upon appeal, when it was filed in the office of the town clerk, thus town had a basis for tax assessment made against the land while the appraisal was being appealed and did not have to wait for the decision on appeal. 32 V.S.A. §§ 4151(a), 4410, 4450, 4602. <bold>4. Towns — Officials — Presumptions</bold> It is presumed that town officials perform their duties in accordance with their authority.<page_number>Page 447</page_number> <bold>5. Taxation — Assessment — Effect of Appeal</bold> An appealed tax assessment is presumed valid during the time of the appeal, and if the taxes are not paid during that time, town may collect interest on the unpaid sum if the appeal fails. <cross_reference>32 V.S.A. § 5136</cross_reference>. <bold>6. Taxation — Payment — Insufficient Sum</bold> In absence of statute requiring it to, town had no duty to accept checks which were insufficient to pay taxes due, and could refuse checks on ground of insufficient tender. <bold>7. Taxation — Payment — Insufficient Sum</bold> Town, being under no duty to accept part payment of a tax, was not estopped from collecting tax by reason of its refusal, on ground of insufficient tender, to accept checks for less than full amount of tax due.

<bold>1. Appeal and Error — Findings — Evidence</bold> The duty of the supreme court is to affirm the findings if there is credible evidence to support them; and in turn construe those findings to support the judgment. <bold>2. Courts — Chancery Court</bold> Under former chancery rules, all material allegations made by each party and not denied by the opposing party were facts admitted, and were to be considered by the chancellor in reaching a decision. 12 V.S.A. App. III, Rules 15, 21. <bold>3. Stipulations — Conclusiveness</bold> Once a party agrees to a stipulation, he is bound by it, and the course of the trial is determined by it. <bold>4. Appeal and Error — Findings — Evidence</bold> If there is no evidence to support a finding of fact, it must be set aside. <bold>5. Appeal and Error — Findings — Evidence</bold> Where parties stipulated to limit case only to factual matters asserted by the plaintiff and admitted by the defendant and the factual matters contained in the defendant's answer, the chancellor<page_number>Page 538</page_number> could not make a finding on a denied allegation, and where he did the finding would be set aside. <bold>6. Constitutional Law — Challenge to Constitutionality of Law</bold> Court is not obliged to examine statutes in question for constitutional defects where the strictures of the legislation are not placed upon the complaining party and hence there is no showing of any injury or any disadvantage statutorily imposed on him. <bold>7. Constitutional Law — Challenge to Constitutionality of Law</bold> Supreme court will not consider constitutional arguments raised by a party where the disposition of the case does not require it. <bold>8. Appeal and Error — Remand</bold> Where no purpose would be served by a remand of an action, supreme court will enter final judgment.

<bold>1. Divorce — Property Settlement — Modification</bold> An adjustment of property rights between two parties to a divorce proceeding cannot be modified or vacated after it has become final, in the absence of fraud, coercion, or other grounds on which ordinary judgments may be modified or set aside. <bold>2. Divorce — Property Settlement — Modification</bold> Where there is no showing that the court which granted the original decree of divorce in which the property settlement was contained had withheld or abused its discretion in making its order for property settlement then the decree as made must stand.

<bold>1. Criminal Law — Trial — Speedy Trial</bold> The right to a speedy trial is generally different from other constitutional rights for the protection of an accused. Vt. Const. Ch. I, Art. 10; U.S. Const. Art. 6. <bold>2. Criminal Law — Trial — Speedy Trial</bold> Although the primary burden is on the courts and prosecutors to assure that cases are brought to trial, the failure of a defendant to assert his right to a speedy trial will make it difficult for him to prove that he was denied such a right. Vt. Const. Ch. I, Art. 10; U.S. Const. Art. 6. <bold>3. Criminal Law — Trial — Speedy Trial</bold> A court confronted with a motion for dismissal on the ground that the defendant has been deprived of a fair trial must make its decision on a balancing test in which the conduct of both the prosecution and the defendant must be weighed, and the factors which should be considered are the length of delay, reason for delay, defendant's assertion of his right and prejudice to the defendant. Vt. Const. Ch. I, Art. 10; U.S. Const. Art. 6. <bold>4. Criminal Law — Trial — Speedy Trial</bold> The right to a prompt trial protects an accused, if he is confined, against prolonged imprisonment prior to the determination of guilt or innocence, protects him against prolonged anxiety and public embarrassment and protects him from the hazards of excessive delay which might deprive him of witnesses in his behalf or dull their memories in the recall of the event and circumstances relevant to the charge. Vt. Const. Ch. I, Art. 10; U.S. Const. Art. 6.<page_number>Page 571</page_number> <bold>5. Criminal Law — Trial — Speedy Trial</bold> Where the delay in trial was caused as much by the failure of the defendant to prepare his defense as it was on the state to move for a speedier trial and defendant was afforded a trial in less than a month from the time he first started to prepare his defense and there was no showing he was hindered in efforts to prepare a defense or that the delay had caused him anxiety, concern or embarrassment, the delay involved was not a denial of the right of speedy trial. Vt. Const. Ch. I, Art. 10; U.S. Const. Art. 6.

<bold>1. Criminal Law — Defenses — Entrapment</bold> Entrapment is defined as criminal conduct which is the product of the creative activity of law enforcement officials; that is they implant in the mind of an innocent person the disposition to commit the alleged offense, not otherwise contemplated by him, thereby inducing its commission for the mere purpose of instituting a criminal prosecution against him. <bold>2. Criminal Law — Defenses — Entrapment</bold> The defense of entrapment does not extend to acts of inducement on the part of a private citizen who is not an officer of the law or an agent thereof.<page_number>Page 576</page_number> <bold>3. Criminal Law — Defenses — Entrapment</bold> In order to resort to the affirmative defense of entrapment, the defendant had to introduce testimony tending to show that accomplice was acting as an agent of the law when defendant participated in the crime with the accomplice, then such testimony could be used to show the inducement to commit the crime was the result of the creative activity of law enforcement officials. <bold>4. Criminal Law — Defenses — Entrapment</bold> Where the line of questioning, and the testimony sought, which was cut off by the court below, had a direct bearing on the existence or nonexistence of an agency relationship between police officer and accused's accomplice at the time the crime charged against the accused was alleged to have occurred, such testimony was highly relevant and material to the defense of entrapment and its exclusion was prejudicial to the rights of the defendant. <bold>5. Criminal Law — Defenses — Entrapment</bold> Although entrapment may become a question of law when the facts are undisputed, ordinarily it is a question of fact which must be submitted to the jury. <bold>6. Criminal Law — Defenses — Entrapment</bold> Where there was sufficient evidence raising the issue of entrapment before the jury, the trial court's failure to submit to the jury that issue of fact and instruct it on the law denied the defendant of a full, fair and correct charge on all the issues which he was entitled to. <bold>7. Indictment and Information — Variance</bold> Where the date of commission is not the essence of the offense, the failure to state the specific date in the indictment does not invalidate it. <bold>8. Indictment and Information — Variance</bold> Where the date that the offense was committed was not an essential element to the offense charged, breaking and entering in the nighttime, the state would be allowed to amend its pleading. <bold>9. Bail — Determination of Amount — Discretion of Court</bold> The determination of the amount of bail set is one of judicial discretion and to maintain error the defendant must show an abuse or withholding of discretion by the court. <bold>10. Bail — Determination of Amount — Accused's Prior Record</bold> The accused's previous record is only one of many elements upon which the determination of the conditions of release on bail is made. <bold>11. Criminal Law — Trial — Speedy Trial</bold> Where the delay in trial which the defendant complained of flowed, not from the prosecution or the court, but from the defense,<page_number>Page 577</page_number> he took nothing from his complaint that he was denied the right to a speedy trial. <bold>12. Constitutional Law — Right to Counsel — Arraignment</bold> While representation of counsel is constitutionally required at each "criminal stage" in the proceedings against a person accused of a crime, absence of counsel at the time of arraignment did not constitute error where defendant's plea of not guilty preserved all rights and defenses which could be raised further in the proceedings. <bold>13. Venue — Change of Venue</bold> The decision of the trial court on a motion for change of venue is a discretionary one and will not be disturbed unless an abuse of discretion is shown.

<bold>1. "Habeas Corpus" — Grounds for Issuance — Sufficiency of</bold> <bold>Evidence</bold> The question of sufficiency of evidence to sustain a conviction, as well as like grounds appropriate to an appeal, are not grounds for the issuance of a writ of <italic>habeas corpus.</italic> <bold>2. "Habeas Corpus" — Availability of Writ</bold> <italic>Habeas corpus</italic> is not a proceeding for examining into the guilt or innocence of the petitioner. <bold>3. Criminal Law — Postconviction Relief — Nature of Relief</bold> Postconviction proceedings, in substance a special statutory remedy in the nature of <italic>habeas corpus</italic> proceedings, are not proceedings to inquire into the guilt or innocence of a petitioner. <bold>4. Criminal Law — Postconviction Relief — Burden of Proof</bold> A plaintiff in an action for postconviction relief is bound by his plea unless he can prove serious dereliction on the part of counsel to show that his plea was not a knowing and intelligent act. <bold>5. Constitutional Law — Right to Effective Counsel — Adequate</bold> <bold>Defense</bold> Unless the record as a whole demonstrates the representation is so rife with shortcomings and of such low caliber as to amount to no representation, judgment of conviction on a plea of guilty will not be vitiated on the claim of inadequate counsel.

<bold>1. Evidence — Intoxication — Opinion</bold> Psychiatrist's opinion as to the state of sobriety of the respondent was relevant to accused's mental state, and, in view of the evidence in the case as to the amount of drinking that the respondent had done, psychiatrist was not restrained by the opinions of lay witnesses that the liquor had had no visible effect on the respondent. <bold>2. Evidence — Intoxication — Opinions</bold> Where the question of the effect of the use of intoxicants on the mental processes of the respondent was for the jury, and the<page_number>Page 614</page_number> testimony of expert was appropriate to that issue and a part of the area of his expertise, the testimony was properly received. <bold>3. Evidence — Intoxication — Role of Jury</bold> Where the evidence as to the alcoholic consumption of the respondent was available to the jury to determine the state of sobriety of the respondent, they were not bound to accept the opinions of lay or medical witnesses, rather it was for them, ultimately, to reach their own conclusions as to that circumstance. <bold>4. Criminal Law — Defenses — Insanity</bold> A motiveless crime, a crime committed entirely without cause or reason, is suggestive of irrationality and the motivelessness may be evidence supporting an insanity defense. <bold>5. Criminal Law — Defenses — Motive</bold> Failure to prove a motive is not the same thing as establishing the crime as motiveless and the prosecutor may be content to establish deliberation, malice, premeditation and rationality by other proof and if the evidence is sufficient failure to prove motive will not thereby reduce the grade of the crime. <bold>6. Criminal Law — Defenses — Motive</bold> Where there was evidence in the case of bad feeling between the respondent and the victims of the homicide the court was not required to charge that the failure to prove motive was to be equated with an absence of motive, and thereby evidence mental attitude or condition. <bold>7. Evidence — Insanity — Burden of Proof</bold> Where evidence challenging the mental competency of an accused enters into a case, the burden falls on the state to prove his sanity as an issue in the prosecution. <bold>8. Evidence — Weight and Sufficiency — Role of Jury</bold> The weight to be given testimony, as well as the selection of testimony to be accepted, are functions belonging to the jury, and, unless entirely unreasonable, must stand.

<bold>1. Appeal and Error — Findings — Supporting Evidence</bold> In review of findings which party has briefed in its exceptions, claimed to be made without evidentiary support, court must read the evidence in support of the findings. <bold>2. Appeal and Error — Preservation of Questions — Failure to</bold> <bold>Present Below</bold> Where no objection was made at the time evidence was introduced in trial court, nothing is presented to supreme court for review. <bold>3. Insurance — Liability for Injury — "Occurrence"</bold> Where "occurrence" was defined in policy as an accident, which results, during the term of the policy, in bodily injury or property damage neither expected nor intended from the standpoint of the insured, then the shooting of police officer by deceased insured was an "occurrence" as it was neither expected nor intended by the insured.