185 A. 100 | Vt. | 1936
Lead Opinion
This case has been here before and the former opinion, Belocket al. v. State Mutual Fire Ins. Co., *255
No question was made about the execution of the policy, or the amount of damages if the plaintiff was entitled to recover, and at the close of all the evidence the plaintiff moved for a directed verdict upon various grounds to the effect that the defendant had not made out any issue to go to the jury upon its plea of fraud. This motion was overruled, subject to exception. The defendant contends that the facts developed at the retrial are substantially similar to those shown at the former trial, and that consequently our former holding is determinative that the motion was properly overruled.
When the case was here before, one of the questions presented was whether the court below had erred in setting aside a verdict in favor of the plaintiff upon the ground that it was contrary to the weight of the evidence. We then said: "We will not disturb a ruling by which a verdict has been set aside, as contrary to the weight of the evidence, merely because the evidence preponderates in its favor; to justify our interference it must appear that the evidence is so strongly in its favor as to leave no reasonable basis for a contrary verdict."
The plaintiff has not pointed out any material differences in the tendency of the defendant's evidence, but we have carefully reviewed all the evidence and have found nothing which materially alters the force of the statement in our former opinion. Like any retrial, slight differences must be expected, but such as are disclosed in no way weaken the force of the tendency of defendant's evidence. The motion was properly overruled.
On the morning of the fire, Belock spoke to one of the two Italians, who had been occupying the north room of the house for the purpose of brewing beer. They went away that day taking a part of their beer apparatus with them, but leaving behind a three-burner oil stove and some other articles, such as a large tank and three or four beer cases and kegs. In their operations they had used the hall of the house for storage of beer cases and kegs, also the north end of the cellar, to which they had access by a stairway from the hall. In gaining access to their room they had used a back door which opened toward the horse barn, the building which burned. When they went away they retained their keys. It did not appear whether they planned to return for the articles they had left. For further details as to the tendency of plaintiff's evidence see the former opinion.
It was the contention of the plaintiff that the Italians burned the barn and attempted to burn the house. With the evidence standing as we have indicated, the plaintiff offered to show that as a result of Belock's speaking to one of the Italians on the morning of the day of the fire, he had trouble with him and that the Italian made threats against him. Several questions along this line were excluded and the plaintiff excepted. It is very doubtful if the plaintiff made his point sufficiently specific, but in our disposition of the exception we will treat the matter as if he had properly offered to show that Belock ordered the two Italians off the premises because they had not paid their rent, and that one of them threatened to get back at him, as the plaintiff was permitted to show at the former trial. *257
The same rule applies here as in a criminal case. "Threats of a third person, other than the prisoner on trial, against the victim of the crime charged, are inadmissible. Evidence of this character is objectionable as being hearsay, res inter aliosacta, and as tending to draw away the minds of the jury from the point in issue, which is the guilt or innocence of the prisoner, and to excite their prejudices and mislead them. But where there is other evidence tending to show that the crime was committed by the third person making the threats instead of by the accused, evidence of such threats is admissible as a part of the facts and circumstances which indicate that the person making them is the guilty person rather than the accused." 8 R.C.L. 186. In State v.Long,
The plaintiff recognized this rule in making his offer, and stated that the question of admissibility depended upon whether there were circumstances in evidence connecting the Italians with the fire, and claimed that he had introduced sufficient evidence to warrant an inference that they were the ones who started the fire. The trouble here is that the plaintiff does not distinguish between a mere suspicion or conjecture and evidence fairly and reasonably tending to show that the Italians set the fire. See cases cited in State v. Long, supra. Such evidence must show that another was in fact implicated. Com. v. Abbott, supra. It must relate to the perpetration of some deed *258 entering into the crime itself. McDonald v. State, supra; Carlton v. People, supra. There must be proof of such a train of facts and circumstances as tend clearly to point to the other. Carlton v. People, supra. Here, the evidence that the Italians had left that day taking their keys with them and leaving a part of their utensils, with no offer to show anything further, merely raised a suspicion against them. The offer was properly excluded.
The plaintiff requested the court to charge as follows:
"The defendants plead they cannot be held liable on the ground, as claimed by them, that the plaintiff Belock set the fire to the horse barn. On this claim the plaintiff Belock is entitled to the presumption of innocence and you should consider that presumption that he did not set the fire as a piece of evidence in his favor. This presumption that he did not set the fire must be overcome by evidence that he did set the fire before a verdict can be found against him. The plaintiff Belock is entitled to this presumption throughout the trial."
The court's charge upon this subject was as follows:
"From the fact that the defendants charge the plaintiff Belock with the crime of setting the fire there arises the presumption of fact that he did not commit the crime and the presumption he did not set, or cause to be set, the fire, is a piece of evidence in his favor to be weighed together with all the evidence in the case."
After the charge the following conversation was had at the bench relative to this subject matter:
*259"Mr. Webber: With reference to the charge of the Court on the question of presumption of innocence I call the Court's attention to that part of our Request No 4. which was mostly complied with, or at least mostly covered with this exception, `the plaintiff Belock is entitled to this presumption throughout the trial' —
"Court: We charged he was entitled to the presumption to be weighed with all the other evidence in the case. We think that covers it.
"Mr. Webber: Then we except to the failure of the Court to charge as requested in the fourth request where the Court did not charge that plaintiff Belock is entitled to this presumption throughout the trial.
"Court: You wish me to comply with that?
"Mr. Gleason: He isn't entitled to the presumption throughout the trial, but only to the point where they find it is out-weighed by the preponderance of the evidence.
"Mr. Webber: They couldn't find that until they are in the jury room —
"Court: Is it not a correct statement of the law as the Court gave it?
"Mr. Gleason: I think it is.
"Mr. Webber: Will you look at this request —
"Court: I understand they often use that phrase. I understand it is a presumption to be weighed with all the other evidence in the case. Of course, the burden of proof stands the same throughout the case."
From the foregoing it is apparent that the only exception saved was to the failure of the court to charge that plaintiff Belock was entitled to the presumption throughout the trial. The failure of the court to charge that the presumption must be overcome by evidence is not before us, as plaintiff's brief would indicate. The plaintiff, in claiming that his request is a correct statement of the law in this State, admits that our cases do not in so many words say that the presumption remains throughout the trial, but does claim that the presumption stands with the party until overcome by the evidence, and as said in Bradish v. Bliss,
Ever since the case of In re Cowdry's Will,
In In re Cowdry's Will,
As the plaintiff has cited only our own cases, and as none of them have ever said more than that the presumption stands until overcome by evidence, we might leave the matter here without going further. But because of the importance of the question, we have to some extent explored the holdings in other jurisdictions. So far as we have examined their cases we find two somewhat contradictory positions. Some courts hold that the jury should be told that the presumption remains throughout the trial; others that it is sufficient to tell the jury that it remains until overcome by evidence. We mention a few cases illustrative of the different positions.
Flynn v. People,
People ex rel. Gow v. Bingham,
People v. McNamara,
State v. Peden,
State v. Bubis, 39 Idaho, 376,
State v. Serlinsky, 115 N.J. Law, 560,
Waters v. State,
The presumption is a piece of evidence, which the jury must consider along with the other evidence, when they come finally to pass upon the case. In this sense the accused is entitled to the presumption, and it does accompany him, throughout the entire trial; but we are unwilling to hold that it is error not so to instruct the jury. Instructions are given after all the evidence and the arguments of counsel, and we are unable to see wherein a jury can consider the instructions other than in connection with the whole case. A majority of the courts have accepted the rule that the presumption of innocence is not evidence. See annotations in 34 A.L.R. 938, and 94 A.L.R. 1042. Even the United States Supreme Court now holds that it may mislead the jury to charge that it is evidence. Holt v. United States,
During the trial plaintiff Belock admitted that for nearly three months before the Italians left he had known that they were brewing beer and ale, and that they had a still and a kerosene stove to make it go. Just before the arguments the defendant asked leave to incorporate into its defense an affirmative plea that the insured had increased the hazard within his knowledge, and therefore voided the policy. To the allowance of the motion the plaintiff excepted. If any error, which we do not decide, it was harmless. When the defendant started to argue the point to the jury the plaintiff objected, and the defendant's attorney then said to the jury: "The point I was going to make is apparently one of law, gentlemen, and I won't discuss it further." The only issue submitted to the jury was, "did the plaintiff wilfully and maliciously set, or cause to be set, the fire which burned the barn and contents?"
Judgment affirmed.
Concurrence Opinion
I concur in the result of the foregoing opinion, but in so doing I do not wish to be understood as subscribing to the soundness of the proposition that the presumption of innocence, *264
or any presumption for that matter, is evidence and is to be weighed and considered as such by the jury. Although this doctrine is said in In re Cowdry's Will,
Since, however, the point is not directly involved in the decision of the instant case, it is unnecessary to labor it at this time.