| Vt. | Apr 19, 1919
Peter Cantoni, a witness called by the plaintiff, testified that he came up West Street with defendant’s son at the time defendant, his wife, and son, started to see the doctor; that he heard defendant say to the boy, “Did you get the gun?” The witness was then asked to tell what the boy said in answer thereto.. Against objection to any conversation of the boy, the evidence was received, and exception noted. The witness stated that the boy said, “I couldn’t find the gun so I got the knife.” The witness having further testified that he did not see the boy hand the knife to his father, defendant moved that the foregoing testimony let in under exception,, be stricken out. Subject to exception, the motion was overruled on the assurance by plaintiff’s attorney that he expected to make the necessary connection. The record states, however, that no witnesses were produced and no evidence was offered, showing that the boy gave any knife to defendant.
What the boy said in answer to the question about the gun was immaterial to any issue in the case, and the evidence of the witness in that respect was mere hearsay. What he said concerning a knife was admissible only in case the evidence also tended to show that he gave it to defendant. Since no such evidence
In his closing argument to the jury, plaintiff’s counsel said the defendant had pleaded guilty to the assault upon which this suit is based, to which statement defendant excepted on the ground that by the uncontradicted evidence the plea of guilty was to what took place in Morgan Hall. Thereupon plaintiff’s’ counsel said that was all he claimed for it, but (continuing his argument to the jury) said “and they call that breach of the peace when he was stabbed four times in the back.” The court stated that defendant’s exception covered this last statement. As a justification for such argument the plaintiff calls attention to the statement in the bill of exceptions that the occurrence in Morgan Hall and the affray on West Street were not over fifteen minutes apart and of the same transaction. It is true that the bill of exceptions so states. At the same time it shows that, according to the evidence given by both parties, the defendant went to his home between the time of the occurrence in Morgan Hall and that on West Street, and that the latter took place after he had left his home to see a doctor. Such being the record, it is not conceivable how pleading guilty to a breach of the peace at the former place is pleading guilty to any offence committed at the latter place. The argument was unwarranted, and permitting it to continue in the same line after objection made, was harmful error.
Judgment reversed, and cause remanded.