Supreme Court of Vermont
State v. Randall Tubbs.
January 10, 1928101 Vt. 5
Summary
The court affirmed the murder conviction, holding that the deceased's statements were properly admitted as dying declarations and that the respondent was not entitled to reversal based on exclusion of proposed threat evidence because the offer of proof did not disclose the expected testimony. The court also upheld the self-defense instructions, concluding that the evidence supported the charge given and that the requested instructions were either inapplicable, defective, or substantially covered. No separate opinions were filed.
Holding
- Admissibility of dying declarations. The deceased's statements were properly admitted as dying declarations. The evidence supported the trial court's implicit finding that the deceased was sane and made the statements under a full and firm belief of near and approaching death; the statements were sufficiently complete, and any error concerning statements made through an interpreter was harmless because materially similar statements were admitted without that objection.
- Exclusion of proposed evidence of threats or hostility. The respondent's exception to exclusion of the proposed threat evidence was unavailing because he made no offer showing what the witness would have said. Although evidence of the deceased's threats may be relevant to self-defense and the identity of the aggressor when properly offered, the appellate court could not determine prejudice or competency from the incomplete record.
- Self-defense and homicide instructions. The trial court did not err in refusing the requested instructions or in defining second-degree murder. The evidence did not require an instruction that the killing occurred in the heat of passion during mutual combat, the requested habitation instruction was unsupported by the evidence, the self-defense instruction substantially covered the applicable law, and the respondent could use deadly force only when it reasonably appeared necessary to protect against death or serious bodily harm.