Volume 131 — Vermont Reports

<bold>1. Criminal Law — Plea of Guilty</bold> A plea of guilty is an admission of guilt according to the law at the time it was accepted by the court and, except in rare circumstances, the validity of the conviction on such a plea is to be judged by the constitutional standards applicable at that time. <bold>2. Constitutional Law — Right to Counsel</bold> The constitutional standards of <italic>Miranda</italic> were not in effect in 1949 when defendant was tried and were not applicable to such a case. <bold>3. Indictment and Information — Pleading — Waiver</bold> The right to not plead to an information or indictment until twenty-four hours after being furnished a copy of the same is a waivable right. <bold>4. Criminal Law — Plea of Guilty</bold> A plea of guilty bars review of prior irregularities if such defects are subject to waiver. <bold>5. Criminal Law — Evidence</bold> It is the evidence in the case, and not the indictment, that determines the degree of conviction. <bold>6. Homicide — Lesser Included Offense</bold> Under the law in effect at the time the defendant was charged with murder in the first degree, if he had pleaded not guilty and subjected himself to trial the jury, depending upon the evidence, could have found him guilty of murder in either the first or second degree or of voluntary or involuntary manslaughter as the charge of the greater offense includes the lesser offense as well. <bold>7. Criminal Law — Plea of Guilty</bold> Where it appeared that the defendant was fully aware of the consequences of his plea of guilty, not only by reason of the advice of his counsel but by reason of his questioning by the court as to whether he had such knowledge, then it was clear that he had voluntarily entered his plea of guilty with full knowledge of its consequences. <bold>8. Criminal Law — Plea of Guilty — Determination of Degree of</bold> <bold>Crime</bold> The purpose of the statute relating to determination of degree of crime upon a plea of guilty was to allow the court to determine<page_number>Page 5</page_number> if a person who pleads guilty to murder is guilty of first or second degree murder, thus if a person had pleaded to first degree murder, the court could hear testimony to determine whether such person was guilty of second degree murder. <cross_reference>13 V.S.A. § 2302</cross_reference>. <bold>9. Criminal Law — Plea of Guilty — Determination of Degree of</bold> <bold>Crime</bold> Where defendant had pleaded to murder only in the second degree there was no need for the court to take testimony to determine the degree of murder as would have been the case if the defendant had pleaded to first degree murder, or even to murder without specifying the degree. <cross_reference>13 V.S.A. § 2302</cross_reference>.

<bold>1. Insurance — Construction of Contracts</bold> In the absence of ambiguity, it is generally the function of the court only to construe and enforce the insurance contract in accordance with the terms in which it is written, and not make a new contract or change its provisions. <bold>2. Contracts — Construction — Common Meaning</bold> Words in a contract will be assigned their common meaning and usage where they can be sensibly applied to the subject matter. <bold>3. Contracts — Construction — Intent</bold> If the language of an instrument is clear and unambiguous its intent cannot be altered by evidence of extraneous circumstances, and in such situation the instrument is to be interpreted by its own language, and the understanding of the parties must be deemed to be that which their own written instrument declares. <bold>4. Insurance — Farm Policies — "Transported"</bold> Where clause in question covered movable farm machinery while it was "being transported" on a public highway, the language clearly indicated that the policy was intended to insure any scheduled farm machinery being moved or conveyed on a public highway from one place to another by some means other than by being operated under its own power, in such case "transportation" connoted movement or conveyance by a force not provided by the machinery itself. <bold>5. Contracts — Construction — Terms by Implication</bold> A term not expressly included will not be read into a contract unless it arises by necessary implication from the provisions of the instrument.<page_number>Page 15</page_number>

<bold>Bail — Requirement of Bail Bond with Sufficient Solvent</bold> <bold>Securities</bold> Although the amount of $50,000 in the fixing of cash bail will not be disturbed where the respondent was charged with being an accessory after the commission of a felony, namely first degree murder, considering the representations of counsel made at the hearing that the respondent had threatened the life of an eyewitness to the alleged murder and a review of the record and proceeding below showing the respondent had four prior felony convictions, the order must be amended by permitting that bail be furnished in the above amount by the execution of a bail bond with sufficient solvent securities, or the deposit of cash in lieu thereof. <cross_reference>13 V.S.A. § 7553a</cross_reference>(a)(4).

<bold>1. Trial — Charge — Allen Charge</bold> Allen charge criticisms of various jurisdictions and commentators are well-founded, and the use of such a charge is disapproved insofar as it departs from the ABA Project on Minimum Standards for Criminal Justice, Trial by Jury, § 5.4, Commentary. <bold>2. Trial — Charge — Allen Charge</bold> Whether reversible error can be predicated on the giving of an Allen charge must be tested by the circumstances. <bold>3. Trial — Charge — Allen Charge</bold> The Allen charge is condemned because it seems to make a juror's duty to reach a verdict so strong that he must compromise his convictions to do so, and lays a burden on the minority not only to reexamine their position, which is proper, but also to seemingly yield convictions produced in them by the facts when the same facts bring the majority to the opposite result.<page_number>Page 338</page_number> <bold>4. Trial — Charge — Allen Charge</bold> The prosecution has the burden to persuade the entire jury of guilt, and whether a failure to do so is partial, as in a disagreement among the jurors, or total, as in a "not guilty" verdict, a defendant is entitled to the benefit of the consequences. <bold>5. Trial — Charge — Allen Charge</bold> Where jury, in prosecution for assault and armed robbery on one count and breaking and entering in the nighttime on another count, deliberated several hours, informed court at 8:30 P.M. that it was having problems, and judge told jury that a failure to reach a verdict causes a mistrial and another trial with no assurance that another jury could do any better, and asked the jury to deliberate for another half hour to see if they could reach a verdict on either or both charges, and shortly before the expiration of a half hour the jury reported guilty verdict on second count and disagreement on first count, judge's charge was not an Allen type charge, did not give jury a coercively brief time to consider the issues, did not support claim that verdict should be set aside as tainted by a compromise, and was not error. <bold>6. Criminal Law — Dismissal — Grounds</bold> Where defendant was found guilty of breaking and entering in the nighttime, but jury could not reach a verdict on count for assault and armed robbery, and on appeal case was remanded for limited purpose of allowing a hearing on improperly denied motion for hearing on issue of probable cause, which was found, it was technically outside lower court's authority to dismiss the charge that was subject to retrial for failure to reach a verdict on it, but as it is for lower court to determine whether dismissal should result, in line with discretion afforded by supreme court directive requiring prompt disposition of criminal charges, and the dismissal was not based on improper or illegal considerations and had a reasonable foundation, supreme court would accept lower court's conclusion as advisory and confirm the dismissal.

<bold>1. Jury — "Voir Dire" — Prejudice</bold> Where juror disclosed she was the mother of a secretary in the office of the State's Attorney and the aunt of a guard at prison in which defendant was incarcerated when he allegedly committed assault, trial court would have been better advised if it had excused her from service upon challenge for cause, even though she stated she could be fair and impartial, as, human nature being what it is, court could have well presumed she might be unconsciously influenced; but where defendant did not show that his exhaustion of his peremptory challenges, one of which he used to remove the juror, resulted in trial by a jury which might have been prejudiced against him, and stated he was content with the jury, court would be reluctant to reverse and remand for new trial if that was the only claim of error.<page_number>Page 359</page_number> <bold>2. Trial — Argument of Counsel</bold> Resort to jury arguments inflammatory in content and departing from the evidence presented or representing the prosecutor's personal belief as to guilt of accused is condemned. <bold>3. Trial — Argument of Counsel — Prejudicial Arguments</bold> Where state prison officer who was asked if he saw what prisoner was doing at time prisoner allegedly dropped a water bucket from one tier to another and upon an officer, stated "the information was that he supposedly was to have a water bucket and drop it on the officer", and defendant moved for mistrial or an order that state produce the person that supposedly furnished the information, both of which requests were refused, it was highly prejudicial for prosecution, in argument to the jury, to say that reasons for not producing a witness can be as grave as the life or death of the witness, and it was clearly prejudicial error requiring reversal and new trial for trial court to allow the argument to stand. <bold>4. Assault and Battery — Criminal Assault — Jurisdiction</bold> Statute allowing warden discretionary power to place an inmate who assaults a prison officer in solitary confinement relates to internal discipline and does not give the warden sole jurisdiction over such assaults or bar a prosecution under the criminal statutes. 28 V.S.A. § 209. <bold>5. Evidence — Past Offenses</bold> Prison inmate charged with assaulting a correctional officer could not successfully claim his constitutional rights were violated when jury was informed of his status as a convicted prisoner where he took the stand in his own behalf and fully identified himself as being a state prison inmate.

<bold>Constitutional Law — Appointment of Counsel — Selection Process</bold> Selection of assigned counsel to defend indigent rested in the trial court, not the indigent, and conviction would not be disturbed on the basis that indigent was not allowed to choose his own assigned counsel.

<bold>1. Evidence — Remoteness</bold> Except for the extremes of relevance where the probative value of evidence is either so slight as to require exclusion as a matter of law or so strong as to require admission as a matter of law, questions of remoteness are largely within the discretion of the trial court. <bold>2. Damages — Ascertaining Amount</bold> Where plaintiff sold restaurant three and a half years after defendant's negligent installation of fuel tank caused oil to spill and contaminate the restaurant's wells, and wells could not be purified and plaintiff installed a new artesian system, proper measure of damages was business loss and cost of new well, not, as argued by defendant, who offered to show that new well increased the value of the property, the difference in the value of the property immediately before and immediately after contamination of the water. <bold>3. Damages — Reduction of Loss</bold> Benefits a plaintiff receives from a source wholly independent of and collateral to the wrongdoer do not decrease damages otherwise recoverable from wrongdoer. <bold>4. Appeal and Error — Amount of Damages — Change on Appeal</bold> Where plaintiff's damages were shown to be $2,291.90 and plaintiff admitted, on defendant's appeal, that verdict of $3000.00 was in excess of that permitted by the evidence and the court's charge, plaintiff was entitled to recover $2,291.90 with interest and costs, and portion of judgment order relating to $3000.00 damages and $20.00 costs would be set aside.

<bold>1. Judgments — Summary Judgments — Supporting Affidavits</bold> Paragraph of affidavit supporting motion for summary judgment, made "on information and belief" rather than "personal knowledge" as required by rule, was not for consideration for lack of compliance with the rule. V.R.C.P. 56(e). <bold>2. Negligence — Assumption of Risk — Burden of Proof</bold> Defendant in negligence action had burden of proof on assumption of risk by plaintiff's intestate. V.R.C.P. 8. <bold>3. Negligence — Assumption of Risk — Elements</bold> Assumption of risk doctrine does not apply unless there is knowledge of the existence of the risk, an appreciation of the extent of the danger, and consent to assume the risk. <bold>4. Negligence — Assumption of Risk — Elements</bold> Mere knowledge of a risk does not necessarily involve consent to assume it; the circumstances must be such as to warrant the inference that the risk was freely and voluntarily encountered with full knowledge of the nature and extent of the risk. <bold>5. Judgments — Summary Judgments — Basis</bold> In wrongful death action by administratrix of volunteer fireman electrocuted after being called to fire occurring when rotten branches knocked down live power line, it was error to hold, as a matter of law, that firemen assumed the risk, where the vital facts necessary to support a summary judgment based on assumption of risk were lacking; and the question was for the jury under proper court instructions. <cross_reference>14 V.S.A. § 1492</cross_reference>. <bold>6. Parties — Binding Effect of Statements</bold> Admission in affidavit of village sued by administratrix of volunteer fireman electrocuted while fighting fire, that village maintained a workmen's compensation policy with a named insurer, was not binding on insurer where insurer was not a party to the action. <bold>7. Judgments — Summary Judgments — Basis</bold> Grant of summary judgment for defendant in negligence action was error where record established triable fact issues which could not be adjudicated in a summary judgment hearing. V.R.C.P. 56.<page_number>Page 383</page_number>

<bold>1. Zoning — Presumptions</bold> It must be presumed, absent a showing to the contrary, that planning commission, in approving plat, was acting in accordance with its authority. <bold>2. Constitutional Law — Due Process — Notice and Hearing</bold> Contention of persons owning and residing on property adjoining defendant's proposed development, the construction of which plaintiffs sought to enjoin, that failure to provide notice of issuance of certificate of permission by building inspector violated due process, was without merit where plaintiffs had not taken advantage of a complete statutory proceeding guaranteeing notice, hearing and appeal on the issue sought to be heard before the building inspector. 24 V.S.A. §§ 3105, 4401, 4411, 4412, 4472. <center> <bold>On Motion to Reargue</bold></center><bold>3. Zoning — Planning Authorities — Powers and Duties</bold> Planning commission had statutory duty to determine whether proposed development violated municipal zoning ordinance. 24 V.S.A. §§ 4415(2), 4441. <bold>4. Zoning — Planning Authorities — Powers and Duties</bold> City planning commission was a creature of statute and as such was to perform duties and exercise powers imposed by law. <bold>5. Zoning — Planning Authorities — Powers and Duties</bold> City planning commission had authority to act only in accordance with, and subject to, the terms and conditions imposed by the state in the enabling act authorizing the grant of power. <bold>6. Zoning — Building Inspectors — Powers and Duties</bold> City building inspector's duty to determine whether issuance of building permit would violate zoning ordinance was a duty to examine the type of building to be built to see if it conformed to planning commission's development plan, not a duty to enforce zoning ordinance and determine whether lot size was proper. <cross_reference>24 V.S.A. § 3105</cross_reference>.

<bold>1. Covenants — Restrictive Covenants — Enforcement</bold> Restrictive covenants are enforceable through the equitable relief afforded by an injunction. <bold>2. Covenants — Restrictive Covenants — Enforcement</bold> In actions regarding restrictive covenants, the relative hardships to the parties has no application to an award of final relief to a plaintiff, because the court is enforcing an established legal right. <bold>3. Covenants — Restrictive Covenants — Construction</bold> Restrictive covenants must be construed so as to give effect to the parties' intentions if it can be gathered from the language used, when interpreted in connection with and in reference to the subject matter and purpose sought to be accomplished when the instrument was executed. <bold>4. Covenants — Restrictive Covenants — Notice</bold> Where a restrictive covenant appears in a grantee's deed, court will find that grantee knew or should have known of the covenant. <bold>5. Covenants — Restrictive Covenants — Breach</bold> Construction company acted at its own peril where it ignored restrictive covenant regarding houses on land it had purchased<page_number>Page 437</page_number> and built the houses without obtaining a resolution of the meaning and effect of the covenant. <bold>6. Covenants — Restrictive Covenants — Enforcement</bold> He who takes land with notice of a restrictive covenant will not in equity and good conscience be permitted to violate the restriction. <bold>7. Covenants — Restrictive Covenants — Height</bold> Covenant restricting houses to one story in height clearly restricted number of stories, not the height of the houses without reference to the number of stories. <bold>8. Covenants — Restrictive Covenants — Height</bold> Defendant who built two-story house on land with level grade could not successfully argue that plaintiffs could not enforce restrictive covenant limiting houses to one story because defendant planned to fill around the house above grade so that only one story would show and because plaintiffs' houses were two stories, where plaintiffs' houses were built into a slope and showed one story from the front and two stories from the rear. <bold>9. Covenants — Restrictive Covenants — Waiver and Estoppel</bold> Question of waiver or abandonment of rights under a restrictive covenant was one of fact, the burden of proof of which was on the party claiming it. <bold>10. Covenants — Restrictive Covenants — Enforcement</bold> Where defendant knew that restrictive covenant limited house he was building to one story and was told by neighbors they intended to enforce the covenant, yet began to build a two-story house, injunction requiring removal of second story was in order. <bold>11. Covenants — Restrictive Covenants — Enforcement</bold> Defendant against which injunction was awarded requiring removal of second story of house being built in violation of one-story restrictive covenant could not successfully argue that it was dealt an injustice and should be granted a new trial because the order was unforeseeable, unintelligible and precluded use of land for type of dwelling appropriate to the area, and because water problems limited foundation depth, where relief granted had been requested in petition, the relief was the only way plaintiffs could protect their view, which the covenant sought to provide, defendant could build a single story house and other houses had been built in the area. <bold>12. New Trial — New Evidence</bold> Defendant held subject to covenant restricting houses to one story was not entitled to new trial on ground that it had not, at time of trial, discovered town building restrictions which would allegedly strengthen its position where plaintiffs had introduced the town restrictions in evidence.<page_number>Page 438</page_number> <bold>13. Contempt — During Appeal — Trial Court</bold> Inherent in the limited reservation of jurisdiction retained by a trial court during an appeal is the trial court's contempt power, which it may use to enforce an injunction during an appeal and thus preserve the <italic>status quo.</italic> <bold>14. Judgments — Modification</bold> Where court enjoined defendant who was building two-story house in violation of one-story restrictive covenant from further construction of the second story and ordered it removed within 60 days, and found defendant in contempt for continuing second story construction during course of appeal, court was without jurisdiction to entertain stipulation, as part of contempt order, that construction could proceed as long as a certain height were not passed, and supreme court had no jurisdiction to remand for a new judgment order conforming to the stipulation.

<bold>1. Criminal Law — Sentence — Pre-Sentence Report</bold> Statute providing that pre-sentence investigation report be filed from one to three weeks after it is ordered creates no substantive rights in a convicted person. 28 V.S.A. § 1208. <bold>2. Criminal Law — Sentence — Pre-Sentence Report</bold> That pre-sentence investigation report required by statute to be filed within one to three weeks of date it is ordered was not filed for thirty-eight days was not grounds for dismissal of the case where respondent did not show prejudice to his rights. 28 V.S.A. § 1208. <bold>3. Appeal and Error — Burden of Showing Prejudice — Prejudiced</bold> <bold>Trial Judge</bold> Bias and prejudice of a trial judge must be clearly and affirmatively shown. <cross_reference>12 V.S.A. § 61</cross_reference>(a).<page_number>Page 458</page_number> <bold>4. Appeal and Error — Prejudice of Judge — Particular Cases</bold> Evidence and findings amply supported conclusion that claim that trial judge who as attorney general had, more than ten years previous, made an argument in a post-conviction proceeding brought by petitioner, and had had petitioner before him as a litigant at one time, and testified in federal court relating to prosecutions of petitioner, was biased and prejudiced against petitioner was unfounded by the evidence; and claim was unfounded in law as well. 12 V.S.A. § 16(a). <bold>5. Criminal Law — Plea-Bargaining — Binding Pleas</bold> Where accused who pled guilty had desired a plea bargain, was properly advised by his counsel and the judge, admitted plea was voluntary and made without threat, was well aware of the alternatives and stated in court that he was satisfied with his counsel, he was bound by his plea. <bold>6. Appeal and Error — Preservation of Questions — Specific</bold> <bold>Objections</bold> Where incompetence of counsel was not alleged in petition or raised below, lower court had no opportunity to rule or find on the issue and it was not for consideration on appeal. <bold>7. Presumptions and Inferences — Competence of Counsel</bold> There is a presumption that counsel appointed for a defendant in a criminal proceeding is competent. <bold>8. Criminal Law — Sentence — Pre-Sentence Report</bold> Whether convicted person sees pre-sentence report is in trial judge's discretion, and one not permitted to see a report has the burden of proving abuse of discretion. <bold>9. Criminal Law — Sentence — Pre-Sentence Report</bold> Where convicted person did not request copy of pre-sentence report or challenge the report, and his counsel examined it and discussed it with him before sentencing, no abuse of trial judge's discretion to decide whether he could see the report appeared. <bold>10. Bail — Change</bold> Statutory provision relating to change of bail conditions did not apply to accused who failed to meet prerequisite that change be requested by accused after he makes a reasonable effort to meet the conditions. <cross_reference>13 V.S.A. § 7553a</cross_reference>(d). <bold>11. Recognizance — Construction of Statutes</bold> Statute relating to release in non-capital cases prior to trial was not applicable to bail set after conviction. <cross_reference>13 V.S.A. § 7553a</cross_reference>.

<bold>1. Statutes — Effect of Repeal or Amendment — Savings Clause</bold> <bold>Statute</bold> Under a savings clause statute relating to the effect of repeal or amendment of a statute, statutory rights and penalties are determined by the statute in effect at the time of the occurrence of the facts and may be enforced after repeal or amendment if the underlying facts are proved. <cross_reference>1 V.S.A. § 214</cross_reference>. <bold>2. Statutes — Construction — Legislative Intent</bold> The general rule of statutory construction is to ascertain the intent of the legislature. <bold>3. Statutes — Construction — Legislative Intent</bold> In construing a statute, legislative intent must be ascertained from the act as a whole, its effect, and its consequences; and the definitive source of that intent is the language of the statute. <bold>4. Criminal Law — Guilt or Liability</bold> Criminal liability is incurred when the criminal act is committed. <bold>5. Statutes — Effect of Repeal or Amendment — Criminal Offenses</bold> Penalty was incurred, under criminal statute, when the prohibited act was committed, and that statute was repealed prior to trial, but after commission of offense, did not deprive court of jurisdiction to try, and pass sentence upon, defendant under the statute. <cross_reference>1 V.S.A. § 214</cross_reference>.