74 A. 183 | N.H. | 1909
1. The plaintiff's evidence tended to show that Mrs. Lawrence had been an intimate friend of the plaintiff for eleven years, and took much interest in the preparation of the case for the plaintiff and assisted her in procuring evidence. One inference that might be legitimately drawn from this testimony was that Mrs. Lawrence was not a disinterested witness; it bore directly on her credibility. The statement of the defendant's counsel, therefore, that Mrs. Lawrence was urging the plaintiff on in this suit, or was "egging her on," was the assertion, not of a fact of which there was no evidence, but of a fact or a conclusion which counsel was justified in saying he would demonstrate; and clearly he would be entitled to demonstrate it by additional evidence, or by argument from the plaintiff's evidence. The suggestion that counsel was thus attempting to argue the case in his opening statement does not appear to be in accordance with the fact, for he was not allowed to finish the sentence. What he intended to say to the jury is not apparent and consequently no error was committed, even if it is error for counsel to indulge in argument when opening his case.
2. The remarks of the defendant's counsel caused by the plaintiff's taking exceptions to some of the defendant's testimony do not appear to have been made with the purpose of influencing the jury against the plaintiff, or to have had that effect. They were made during the course of a heated trial; and if for any reason they were improper, or were spoken in an offensive manner, the presiding justice in the exercise of his discretionary power could have corrected any unfair influence they were calculated to produce in the minds of the jury. No question of law is presented by this exception.
3. The bill which the defendant paid Hoxie was submitted to *311 the inspection of the jury, to show that the items were not dated; and the only materiality of that fact was that it furnished some reason for the defendant to hesitate about paying it, as she had testified. It was in evidence that she and Hoxie had some business relations soon after the death of her husband and that the bill in question related thereto. If her testimony was true, it might be inferred that Hoxie's visits to her were in part, at least, for the transaction of business with her and the presentation of his bill for services rendered to her husband. It is conceded that the bill bore no dates, and she testified that she took advice about paying it made out in that way. From this it could be argued that her relations with Hoxie were not particularly intimate, for if they were she would not be likely to question his account. The point thus presented was whether the items of the bill were in fact dated. The bill itself was the best evidence upon that subject, and its inspection by the jury for the purpose of determining that fact was proper. While this evidence may not have been of great materiality, its admission under the circumstances was not error. Upon the point then in issue it was not in the nature of hearsay evidence, but original evidence in proof of a physical fact.
4. The plaintiff claimed that the defendant harbored the plaintiff's husband in her house and encouraged him to come there for improper purposes, and submitted evidence that for a certain period before the date of the writ he was frequently there. In explanation of these visits, the defendant's evidence tended to show that the plaintiff's husband was at her house upon business relating to the repair of her house, and that for that reason alone she allowed her servant to admit him; and to prove that she allowed him to be there only on matters of business, — that such was her course of conduct toward him (Kenney v. Hampton,
5. Although Mrs. Sise testified that she did not have the conversation with the defendant, by telephone, which the plaintiff's evidence tended to show she did have, no error of law was committed in permitting her to testify that, upon the assumption that she did use the language imputed to her, it had no reference to the relations existing between Hoxie and the defendant. The jury might believe that she did use the language the plaintiff's witnesses testified she did, and, without other evidence of the persons referred to by such language, that she was talking about Hoxie and the defendant. It was therefore proper for her to testify that if she did use such language it did not relate to those parties. The case does not show what the alleged conversation was; but it is assumed it Was somewhat indefinite in its application to particular persons.
6. One of the defendant's witnesses had been allowed to testify that he told the defendant he had heard a rumor that her house was being watched. It may be inferred that the idea intended to be conveyed by the rumor was that the plaintiff had employed a detective to ascertain whether her husband visited the defendant. *313
This evidence was admitted without objection, and whether it was material or not is a question that is not raised. But after the witness had testified to this conversation with the defendant, he was asked, subject to exception, what her appearance was upon receiving this information. The appearance of a person when informed of a matter affecting his respectability and honor may be and often is some evidence of innocence or of guilt. The appearance of an innocent person, when first informed that he was charged with the crime of murder, might be such as he would not be expected to exhibit if he were guilty. Different persons would appear differently under such circumstances, and no general rule can be logically formulated to determine the question in all cases. But it is insisted that it was reversible error to allow the witness to testify that the defendant was most indignant when he told her of the rumor. The argument is that this was equivalent to an. assertion of innocence of improper relations with Hoxie and was therefore a self-serving declaration. If she had said, "I am innocent of the charge made against me by the plaintiff," it is conceded her statement would not have been admissible, for the reason that it was a statement in her favor made in the absence of the plaintiff. But the case does not show that she said anything in regard to her controversy with the plaintiff, or that she made any reply to the story the witness told her. In some way, not described by the witness, she exhibited indignation on account of the rumor that her house was being watched. That detectives are employed to watch one's movements, or to discover who are entertained in one's house, is calculated to create indignation, aside from any question of moral turpitude. A person guilty of a crime would be apt to be as indignant at such surveillance as a person conscious of no moral defect. Indeed, the indignation of the criminal might naturally be greater than that of the innocent person. If the defendant, instead of showing signs of indignant surprise, had appeared to be amused by the rumor and to regard it as frivolous, could it be said that her appearance indicated a consciousness of guilt? If innocence is the logical conclusion from her apparent indignation, guilt would be evidenced by her apparent merriment. The fact is there is no such reasonable or necessary connection between the fact proved and the inference sought to be drawn from it as to make the admission of the evidence erroneous as a self-serving declaration. If such a logical connection were apparent, it would be necessary to consider whether one's appearance, when accused of some moral turpitude, indicating innocence might not be admissible, as well as one's appearance indicating guilt. See 1 Wig. Ev. s. 293; 3 Ib., s. 1732 (2), (4); Campbell v. State,
Exceptions overruled: judgment on the verdict.
BINGHAM, J., doubted: the others concurred.