State v. Barnett

Sherburne, J.

(dissenting). I regret that I am unable to concur with the majority.

The power conferred upon a court by P. L. 8872 to place a respondent upon probation ' ‘ upon such conditions and for such time as it may prescribe, or until further order of the court” gives a wide discretion. According to the analogy of a conditional pardon it is limited only by the proviso that the conditions must not be illegal, immoral or impossible of performance.

In re Conditional Discharge of Convicts,

73 Vt. 414, 419, 420 , 51 Atl. 10 , 56 L. R. A. 658. It is said in

In re Gordon,

105 Vt. 277, 279 , 165 Atl. 905 , that in addition to these requirements it must not be unreasonable. The statute is not penal in character, but is designed to be the means of reformation and rehabilitation of the wrongdoer, and, in a proper case, of relieving him against the stigma of imprisonment,

In re Mall,

100 Vt. 197, 202 , 136 Atl. 24 ; but it may be so exercised as to be the instrument of injustice. Granted that restitution máy be made ¿ condition of probation, the practice of exacting the payment of unliquidated damages claimed to. have been sustained by the negligence of the respondent should be indulged with extreme caution. There may well be criminal, but not civil liability. No matter what fault may attach to the respondent, the injured party may he barred from recovery by his contributory negligence, or for some other legal reason. Therefore, to force a settlement by the threat of imprisonment, if such condition is not met, may be to deprive the respondent of the right to present his defense and have its sufficiency passed upon in a civil court in an action between the

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parties concerned. The consent of the respondent is not conclusive of the fact of his liability, for who would not consent under such circumstances? He is, however, bound thereby.

In re Conditional Discharge of Convicts, supra,

p. 423, 51 Atl. 10 . There is force in the contention that such procedure amounts to the employment of the criminal process of the State as the means of the collection of a civil claim, so it should be rarely employed, and, when used, great care should be exercised to see that the respondent freely consents and to ascertain that he is solely at fault. •

The offense of which the respondent was adjudged guilty was that of leaving the scene of an accident, under P. L. 5156, and this section applies not only to the person causing the accident, but to any person involved in it; in other words, to the innocent as well as to the guilty participant, and so the conviction was not a necessary adjudication of blame for the accident. It is true that the record fails to show a connection between the offense and the cause of the accident, but this is not enough, because, according to our familiar rule, it is incumbent upon the appealing party to produce a record in this Court which affirmatively shows that error has been committed below.

Higgins

v.

Metzger,

101 Vt. 285, 296 , 143 Atl. 394 . The record is to be construed against him.

Bank

v.

Bertoli,

88 Vt. 421, 425 , 92 Atl. 970 . We must indulge every reasonable intendment in favor of the judgment of the trial court, and it cannot be reversed unless all such intendments are against it.

Manley Bros.

v.

Somers,

100 Vt. 292, 297 , 137 Atl. 336 ;

Biow Co.

v.

Cohen,

99 Vt. 78, 80, 81 , 130 Atl. 589 , 52 A. L. R. 586, and eases cited. The court below was a municipal court, but the rulings of that court are entitled to the. same intendments as those of the county court.

State

v.

Donaluzzi,

94 Vt. 142, 148 , 109 Atl. 57 . So we cannot assume, in the absence of an affirmative showing to the contrary, that the court in this instance imposed any duress upon the respondent to accept the condition, or that it was not informed of the circumstances, and that the departure from the scene of the accident was not so related to fault on the part of the respondent that no close connection between the two could be found. The fact of flight, indeed, is some evidence of guilt, though not conclusive. But it does not tend to show that the injured party was without fault.

Wellman

v.

Wales,

97 Vt. 245 ,

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254, 122 Atl. 659 . Moreover, for aught that appears, the injuries suffered may have been aggravated by the failure of the respondent to stop and render such assistance as may have been reasonably necessary, according to the provisions of-the statute. It is significant that nowhere, not even here, does it appear that the respondent has ever claimed that he was not at fault.

The sentence was within the limits fixed by the statute, and no attempt has been made to explain the circumstances of the offense. The sum involved here would import a rather serious accident. Leaving the scene of an accident under such circumstances indicates a degree of moral turpitude, as one will not flee but will stop to render assistance, unless he is a coward or lacks all regard for the suffering and inconvenience of others. We cannot disregard the presumption of regularity in the proceedings below and assume that the sentence was excessive, or that it was made unduly severe so as to induce the respondent to accept this condition.

Upon the authority of the cases cited in the majority opinion there would be no question about the condition as to restitution imposed here had the respondent been convicted of careless and negligent operation of his automobile. But the majority have laid down the rule that a condition of restitution can only be prescribed when the loss sustained is a direct consequence of the particular crime for which the respondent stands convicted. I . agree to this with this limitation, that when the of-fence for which the respondent stands convicted is closely related to an offense whereby another suffers injury, the court has power to prescribe a condition of restitution-for such injury. The Georgia case of

Roberts

v.

State,

cited by the majority, sustains this contention.

People

v.

Funk,

cited by the majority, was governed by a limiting statute and is of no help to them.

As we must presume that the court considered that the respondent was at fault I can see nothing, about this condition, under the circumstances, that is against public policy under the definitions of that term as given in the majority opinion. The twTo offenses, that of negligent driving and that of leaving the scene of the accident, make up but one chain or sequence of events. As the negligent act may have been one of mere momentary inattention, the prosecuting officer may have only prosecuted for the offense of leaving the scene of the accident, because

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that offense impressed him as being the more shocking to the public sense of right and wrong, and because he thought that the ends of justice could be met by the punishment imposed for that offense. I cannot see anything about the procedure followed, assuming as we must that the respondent freely consented and that the court ascertained that he was solely at fault, that is injurious to the interests of the public, or which contravenes the established interests of society, in letting the respondent go upon probation upon the condition that he requite his own' wrong. To the contrary, I think that such a disposition meets with general public approval in conformity with the morals of our time.

The only question here, assuming it to be properly before us, is whether the court exceeded its jurisdiction in prescribing the condition of payment. In view of the broad powers given by the statute, I think this must be answered in the negative. It is not illegal, immoral, impossible of performance, or unreasonable, so far as appears.

I would overrule the exceptions.

Moulton, C. J., joins in this dissent.