Prior to his death sentence, DeMag had been
sentenced to life imprisonment after being convicted of murder. In
1952, DeMag and fellow-prisoner Francis Blair escaped from the state
prison in Windsor by crashing a laundry truck through the front gates.
While on the run, DeMag and Blair had attacked
Elizabeth Weatherup and her husband in Springfield, Vermont. DeMag and
Blair beat the couple with a lead pipe as they attempted to rob them.
Weatherup died of her injuries. Two days after their escape, DeMag and
Blair were recaptured and tried for first-degree murder. They were
both convicted and sentenced to death by electric chair.
Blair and DeMag were both executed by electric
chair. Blair was executed on 8 February 1954. DeMag was executed on 8
Although DeMag was the last person executed by
Vermont, he was not the last person to be sentenced to death by a
Vermont court. In 1957, Lionel Goyet was sentenced to death, but his
sentence was commuted six months later and Goyet was pardoned and
released in 1969. The death penalty was abolished by Vermont in 1965.
October 5, 1954
STATE OF VERMONT
SYLLABUS BY THE COURT
Evidence. Appeal and Error.
1. Inclusion of inadmissible matter in an offer may
render the exclusion of the whole offer proper.
2. Where the defendant proceeds with his case after
denial of his motion for a directed verdict he thereby waives his
3. The trial court cannot be put in error on a
point not made below.
4. Proof of a breaking and entering with intent to
commit any larceny is sufficient to convict a respondent of burglary.
5. The term "or other felony" as used in V. S. 47,
§ 8300, which lists offenses constituting burglary is not a limitation
on what precedes, but is inserted to extend the scope of the section
to other offenses not specifically named therein.
6. An instruction to the jury that unless the
respondent's guilt is proved beyond a reasonable doubt he is entitled
to acquittal, carries with it the necessary implication that he must
be assumed to be innocent until this is done.
7. The Fourteenth Amendment to the Federal
Constitution does not require a charge on the presumption of
8. The Supreme Court will not, even in criminal
cases, consider questions not raised in the court below.
9. The charge to the jury must not be construed
piecemeal but as a whole.
10. Where the charge to the jury substantially
complies with the respondent's request an exception to the charge is
of no avail.
Prosecution for Murder in the first degree. Trial
by jury, Windsor County Court, December Term, 1953, Barney, J.,
presiding. Verdict of guilty and judgment thereon. Affirmed.
The opinion of the court was delivered by: Cleary
This case is here on exceptions of the respondent
following his trial by jury in the Windsor county court where he was
convicted of murder in the first degree. The victim was Elizabeth
Weatherup. A companion case, previously tried, is State v. Blair, 118
Vt 81, 99 A.2d 677.
 The respondent excepted to the exclusion by the
trial court of a certified copy of the transcript of a proceeding
which occurred while the case of State v. Donald Demag was being
considered at the March 1948 term of the Chittenden county court. At
that time the respondent had been indicted for the first degree murder
of one Francis Racicot and, on arraignment, pleaded guilty to murder
in the second degree. The matter being considered was whether the
court should accept that plea. Both the attorney general and counsel
for the respondent reviewed the respondent's history at considerable
length and requested the court to accept the plea. At the trial of the
case now being considered the respondent offered the entire transcript
of this former proceeding and, when asked by the court the purpose of
the offer, stated that the offer was made on the ground that the
transcript was a judicial admission against the State and might
constitute the basis of a verdict in the case then being tried. The
offer was of the entire transcript and included statements of his own
counsel in his behalf. Much of it was hearsay and self serving. The
inclusion of this inadmissible matter rendered the exclusion of the
whole offer proper. Ravine House Co. v. Bradstreet, 102 Vt 370, 375,
148 A 481; Turgeon v. Baker, 105 Vt 61, 63, 163 A 588. The exception
is of no avail.
 At the close of the State's case in chief the
respondent moved for a directed verdict because the State had failed
to prove that the respondent had broken and entered the Weatherup home
with the intent to commit felonious larceny. He waived his exception
by proceeding with his case after the denial of his motion. Croteau v.
Allbee, 117 Vt 332, 334,
91 A.2d 803; Frederick v. Gay's Express,
111 Vt 411, 413,
17 A.2d 248; Parrow v. Proulx, 111 Vt
274, 281, 15 A.2d 835. Gregoire v. Willett, 110 Vt 459, 461. At the
close of all the evidence the respondent made another motion for a
directed verdict on three separate grounds. He now briefs his first
motion made at the close of the State's case in chief and also briefs
the failure of the court to charge that the State, in order to prove
that the respondent had committed burglary, had to prove that the
respondent broke and entered the dwelling house with the intent to
commit felonious larceny. But the record does not show that the
respondent renewed his first motion for a verdict or included the
ground of failure to prove intent to commit felonious larceny in his
final motion for a directed verdict, or requested the court to charge
on that subject or excepted to the failure of the court to so charge.
 The trial court cannot be put in error on a
point not made below. Campbell v. Howard National Bank, 118 Vt 182,
103 A.2d 96; State v. Hilliker, 117 Vt
97 A.2d 119; Winegar v. Estate of Aubin,
117 Vt 440, 441,
94 A.2d 240; Croteau v. Allbee, 117 Vt
332, 335, 91 A.2d 803; Bonneau v. Russell, 117 Vt 134, 136,
85 A.2d 569; Morrill v. Boardman, 117 Vt
86 A.2d 146; State v. Lindsay, 110 Vt
120, 123, 2 A.2d 201.
[4, 5] Moreover, the claim has no merit even if the
question had been properly saved below. It has long been settled law
in this State that proof of a breaking and entering with intent to
commit any larceny is sufficient to convict a respondent of burglary.
State v. Keyser, 56 Vt 622, 623-624, State v. Hodgdon, 89 Vt 148, 151,
94 A.2d 301. The respondent admits that we would have to overrule
these cases in order to sustain his position. We refuse to do so. It
is a matter of common knowledge that nearly all offenses against the
law of burglary are committed with intent to steal; and, in nearly all
cases, except when the defendant is caught with the goods, the extent
of the larceny which he intended to commit cannot be proved.
Therefore, if the State should be required to prove a specific intent
to commit grand larceny it would be, in most cases, impossible to
procure convictions, however guilty the accused might be. We think the
term "or other felony", as used in V. S. 47, § 8300 which lists
offenses constituting burglary is not a limitation on what precedes,
but is inserted to extend the scope of the section to other offenses
not specifically named therein. See State v. Hows,
31 Utah 168, 87 P 163; Hall v. State ,
48 Wis, 688, 4 NW 1068.
The respondent excepted to the failure of the court
to charge in accordance with the respondent's request that "All
persons charged with crime and brought to trial are presumed by law to
be innocent until proved guilty, and the law presumes this respondent
to be innocent until the contrary shall have been established." The
respondent does not dispute but agrees, in accordance with Tyrrell v.
Prudential Insurance Co., 109 Vt 6, 192 A 184, 115 ALR 392, that in
this State the presumption of innocence is not evidence. His
contention is that in a criminal case the trial court is required to
charge the jury that the respondent is presumed to be innocent until
the contrary is established, that is, until the State has proved him
guilty beyond a reasonable doubt.
There is great conflict on this point in decisions
of various courts both state and federal but it is unnecessary to go
outside of the cases arising in Vermont. The respondent cites 33333
State v. McDonnell , 32 Vt 491, 538; State v. Patterson, 45 Vt 308,
314; State v. Costa, 78 Vt 198, 204, 62 A 38; and State v. Shaw, 89 Vt
121, 131, 94 A 434, LRA 1915F, 1087. These decisions were all previous
to the Tyrrell case where our present rule was adopted that the
presumption of innocence, of itself alone, contributes no evidence and
has no probative value. In that case at 109 Vt 25 our court said,
"Anything and everything in our cases to the contrary of the rule
herein adopted as to presumptions is hereafter to be disregarded."
 State v. Lizotte, 109 Vt 378, 387-388, 197 A
396 is squarely and exactly in point. There the court refused to
instruct the jury, in accordance with requests almost identical with
the request here. The decision repeats the rule adopted in the Tyrrell
case. The Lizotte case then holds that the function of a presumption
is the same in a criminal as in a civil case and, since the
presumption has no probative value, it is not for consideration by the
jury and is not an appropriate subject upon which to charge the jury.
State v. Demars, 118 Vt 175, 177-178, 102 A.2d 845. Therefore the
trial court was not required to charge the jury on the presumption of
innocence. The instruction, which was fully given in this instance,
that unless the respondent's guilt was proved beyond a reasonable
doubt he was entitled to an acquittal, carried with it the necessary
implication that he must be assumed to be innocent until this was
done. State v. Lizotte, 109 Vt 378, 388, 197 A 396.
 The respondent claims that the right to a
charge on the presumption of innocence is protected from infringement
by State action under the fourteenth amendment of the federal
constitution. In Howard v. North Carolina, 191 US 126, 24 S. Ct 49, 48
L ed 121, the same claim was made but was decided adversely to the
respondent. So the exception is of no avail.
The respondent claims that the failure to charge
the jury on the presumption of innocence was aggravated by other
errors in the charge. Specifically the respondent says that it was
error for the trial Judge to charge: "The law does not require that
each particular incriminating fact which may aid the jury in
determining that the accused is guilty shall be proved beyond a
reasonable doubt. The doubt which will justify an acquittal is not a
doubt of any particular fact constituting the sum of the prisoner's
guilt, but a doubt, upon all the evidence, that he is guilty." that by
twice using the word "the" when referring to burglary the trial Judge
assumed that a burglary had been committed.
 The record does not show any exception to these
alleged errors in the charge and the respondent claims none in his
brief. It is the established rule of this Court that it will not, even
in criminal cases, consider questions not raised in the court below.
State v. Monte, 90 Vt 566, 568, 99A 264; State v. Williams, 94 Vt 423,
443, 111 A 701; State v. Stacy, 104 Vt 379, 410, 160 A 257, 747.
The respondent excepted to the failure to charge
that "If the evidence upon any essential point admits even a
reasonable doubt, the respondent is entitled to it." In support of
this exception the respondent cites and quotes State v. Meyer, 58 Vt
457, 462, 3 A 195, 198. In that case the respondent excepted to the
court's refusal to charge as requested that the respondent should be
acquitted if the jury believed that the evidence, upon any essential
point, admitted "of the slightest doubt consistent with reason." The
court modified the last phrase of the request and charged "of any
reasonable doubt, a doubt consistent with reason" and the decision
holds that charge was all the respondent was entitled to.
[9, 10] Here the court carefully and correctly
charged the jury regarding reasonable doubt. It charged that the jury
must be satisfied that all the essential elements of homicide were
established beyond a reasonable doubt in order to convict. It then
charged the essential elements of each degree of homicide. It also
charged the essential elements which the State must prove in order to
justify a verdict of guilty; also that the State must establish beyond
a reasonable doubt either that the respondent did the killing or
participated in the killing, or participated in a burglary resulting
in the killing and that the respondent was legally sane at the time.
The charge must not be construed piecemeal but as a whole. State v.
Orlandi, 106 Vt 165, 176, 170 A 908; State v. Blair, 118 Vt 81, 97, 99
A.2d 677. It substantially complied with the respondent's request so
the exception is of no avail. State v. Rivers, 84 Vt 154, 156, 78 A
786; State v. Warm , 92 Vt 447, 449, 105 A 244, 2 ALR 811; State v.
Tubbs , 101 Vt 5, 23, 139 A 769; State v. Marini, 106 Vt 126, 145, 170
A 110; State v. Lizotte, 109 Vt 378, 386, 197 A 396.