Hall v. Jones, 55 Vt. 297

Hall v. Jones

55 Vt. 297 | Vt. | 1883

*299The opinion of the court was delivered by

Redfield, J.

This is an action on the case for deception and fraud in selling shares in certain mines in Nevada.

The trial of the case seems in the main to have been considerate and fair ; but we think there must be awarded a new trial for certain errors in the admission of testimony. Comins was allowed to testify as to what Munson told him about the transaction several months after the sale to Hall. So that what he narrated at that time was merely narrative in its character, and not legal evidence. State v. Thibeau, 30 Vt. 100 ; Greenl. Ev. ss. 113, 114.

II. The testimony of Douglas as to what Munson told him is obnoxious to the same objection ; and the further objection, that the transaction with Douglas was quite a distinct matter from that with Hall, and at a different time. And the' attempt to charge this testimony out of the case did not cure the error. Sterling v. Sterling, 41 Vt. 80 ; Hodge v. Bennington, 43 Vt. 458 ; State v. Hopkins, 50 Vt. 316 ; State v. Meader, 54 Vt. 128. The latter case is criticised as going too far in a dissenting opinion by Royce, Ch. J., but the general rule is admitted. In this case it was suggested that other testimony would make this evidence admissible ; but it is difficult to see how testimony foreign to the issue on trial can be made evidence by any additional testimony. So in State v. Meader, the court admitted evidence, under objection and exception, that a. certáin person mixed paint like the fresh paint with which the stolen sled was disguised on Sunday, and but a short time before the sled was found disguised with fresh paint. This was obviously not evidence ; but counsel averred earnestly that the painter was employed by the respondent to prepare and mix this paint on the Sabbath, which, if true, convicted the respondent of perjury. What others had done with paint or with the sled had no bearing on the issue, and in no sense affected the guilt or innocence of the respondent. The Supreme Court thought the admission of the evidence was error.

The fact that respondent committed perjury in denying that he painted the sled to cover his larceny was not a complicated fact made up of several facts, which might require several witnesses *300and several pieces of evidence to establish the fact; nor was it questioned that the sled had been freshly painted, and the simple question was, did the respondent do it ? There was then no necessity of proving what somebody had done, with a strong asseveration by the attorney for the State, that he would bring home the damaging fact to the respondent; and when he fails to do so then inform the court and jury that by some providential accident or by some suspected agency of the respondent the important evidence is not accessible. All this has a tendency to impress a jury, and, especially in a criminal case, may turn the scale against the accused. And where there is no necessity of adducing evidence of that character, .and it may have worked mischief, there is no propriety in receiving it. And the better and safer way is to keep all illegal testimony out of a case where there is no necessity and no legal or moral fitness in its being in the case; and not the least benefit of such a rule is that a court thus avoids the vigorous declamation of counsel before a jury of what he will b ealle to prove.

Judgment is reversed and cause remanded.