Childs v. Merrill

66 Vt. 302 | Vt. | 1894

TAFT, J.

I. The plaintiff called the defendant as a witness and was permitted to examine him under the rules applicable to the cross-examination of witnesses. This right was given the plaintiff by R. L., s. 1009, and in enforcing it the court did not err.

II. Facts are alleged in the declaration, which, if true, constitute a crime. At the time of the trial the statute barred any prosecution, and the defendant, called by the plaintiff, testified in relation to the alleged facts. Under exception he was asked if when a certain deposition was taken in New York, to be used in the cause on trial, and before the statute barred the prosecution of the defendant, he did not decline to answer certain questions relative to the alleged facts, upon the ground that the answers might tend to criminate him, and he answered in the affirmative. Under like exception counsel were permitted to argue that the fact that the defendant so claimed such privilege, was in effect a solemn declaration under oath that he was guilty of the act charged. The jury were told by the court that claiming the privilege was not necessarily a confession of guilt, but was a circumstance to be considered; that a man entirely innocent might under some circumstances claim the privilege, etc., and to this part of the charge an exception was taken. No authority cited upon this point sustains the principle contended for by the defendant. Each case is one in which the witness was, at the time of his examination, entitled to the privilege, and availed himself of it, and the doctrine is announced in most of them that no inference of guilt can be drawn by the jury from the legal assertion by the witness of a constitutional right. That the allowance of the privilege would be a mockery of justice if either party can be affected injuriously by it. At the time of trial in the case at bar the witness was entitled to no privilege; the statute barred any criminal prosecution; he was examined fully in regard to all the facts in controversy; we think there was no error in permitting the plaintiff to show that the defendant had on a former occasion availed himself of the privilege as tending to show him guilty of the facts alleged, in permitting counsel to comment on the testimony, nor in the charge of the court upon the subject. The fact that the witness availed himself of the privilege on some former occasion tended to show an admission of guilt, and it seems to us illogical to say that one may be examined in relation to all the facts and circumstances in a case, but not in respect to an admission as to such facts. The defendant’s refusal to testify in New York was upon the ground that his answers, if truthful, would tend to criminate him. Hence his refusal was a fact proper to be shown to, and considered by, the jury, upon the question of whether the facts alleged in the declaration were true or not, and the court below gave it its true force and scope. There was no error upon this point.

III. Exception was taken to the admission of the testimony of Mr. Mason, an attorney, upon the ground that the matters testified to were privileged. The general rule in respect to such matters is well understood. Communications made by a party to his attorney in regard to any matter upon which he consults the latter, and papers entrusted to the attorney, in the course of the client’s business, are privileged. The attorney must be acting as the legal adviser of the party at the time. Coon v. Swan, 30 Vt. 6. The communication must be to the attorney confidentially as counsel. Earle v. Grout, 46 Vt. 113. The evidence tended to show that the defendant did not consult Mr. Mason professionally, did not advise with him in respect to any matter, but that Mr. Mason, although an attorney, acted as a mere scrivener, simply drew the deed, no advice being given nor asked. In other words, the testimony tended to show that the communication was not privileged. Whether it was so or not, was a preliminary question addressed to the trial court, and not revisable here. The court.found it was not privileged and its action is conclusive. It may have erred but we. cannot revise its findings.

IV. The defendant requested the court to charge that “the legal presumption is that the defendant is not guilty and he is entitled to have this presumption weighed in his favor.” When, in the trial of a civil cause, a person is charged with fraud, dishonesty, or crime, there is a legal presumption that he is innocent, and he is entitled to have such presumption considered by the jury in connection with the evidence in the case. Greensboro v. Underhill, 12 Vt. 604; Bradish v. Bliss, 35 Vt. 326; Weston v. Gravlin, 49 Vt. 507; Fire Assn. v. Bank, 54 Vt. 657; Currier v. Richardson, 63 Vt. 617; Stevenson v. Gunning's Est., 64 Vt. 601. The right of the party charged with fraud, etc., to have the jury so instructed has generally been recognized and acted upon, and no case in mind holds differently, unless Weston v. Gravlin, sufra, is an exception. In that case the court said that it was not error in the trial court to decline to call the attention of the jury to the fact that such presumption existed; but this is not in accord with the other cases cited. The rule is now generally recognized that the jury should be told that the presumption exists. The plaintiff does not contend that such is not the law but insists that the jury were so instructed. A majority of the court are of the opinion that the request was not complied with. The jury were told that the case must be disposed of “ upon a consideration of all the facts and circumstances of the case appearing in evidence,” thus excluding any presumption of innocence.

V. Whether there was error in the charge of the court in respect to the California land is immaterial, for the court said to the jury, “ The matter of the California land you may lay out of the case so far as it has been presented and relied upon as a matter of recovery.” We presume the jury followed the instructions, naught else appearing; and as no damages were returned for the California land, the defendant was not harmed. We have no occasion therefore to discuss the charge.

Judgment reversed and cause remanded.