57 Vt. 178 | Vt. | 1884
The opinion of the court was delivered by
I. The first question in this cause arose upon impanelling the jury. When court adjourned the first day of the trial eleven jurors had been accepted, six of the regular panel, and five talesmen. When it commenced the second day a panel, who were out on the first, were present and the eleven accepted jurors were discharged, and a panel selected from those regularly in attendance. The defendant excepted to the order of the court discharging the eleven jurors; and the question presented is, was such order error?
It is a settled rule of practice, that some prejudice to the excepting party resulting from the rulings of the court below in organizing the jury, or, at least, some infringement of the statutory provisions relating thereto, must be shown before this court will revise the proceedings of the trial court. It is within the discretion of the court to direct the clerk in calling a panel to omit the names of such jurors as are presumably disqualified or unable to serve; for example, such as have been present and listened to a former trial of the same cause, or a trial involving the same questions; those ill or whose family are; and many other instances that might be named. A wide discretion is allowed
II. Was the transcript of Quinn’s testimony admissible? While there is force in the suggestions of the defendant’s counsel, we think that sec. 816 of the R. L. makes’ it evidence, although the stenographer described in words signs made by the witness. What his testimony was upon the former trial could have been shown by witnesses who heard it. See cases cited in Roberts’ Digest, 285. And the signs made by the witness are no doubt as well described by the stenographer, in his transcript, as they would have been by witnesses on the stand.
I take this occasion to note the dissent which I expressed in consultation at the former hearing, from the conclusion of the court, that Quinn was a competent witness. The fact appeared that he was not, and could not have been cross-examined. Thus the defendant was deprived of one of the two great tests of the truth of a witness, viz.: a cross-examination. I should, therefore, have excluded his whole testimony, but the court held otherwise, and the statute makes a transcript made by the stenographer evidence.
The defendant was not entitled to a compliance with his request that the manner of its reproduction materially lessened the weight to he given his testimony. It would have been proper for the court to have told the jury that it should have been considered by them in determining that question. How much it lessened its weight was a question for them, not for the court.
III. Doran became a bankrupt in December, 1877. In March afterwards his assignee sold a stock of ready-made clothing, belonging to the estate, to the plaintiffs’ intestate, Quinn. It is claimed by the defendant that the goods in question were a part of said stock; that the sale to Quinn was a mere sham or cover; that it was really made to Doran;
If the defendant could satisfy the jury that Quinn and Doran had conspired in the matter, and that the sale to Quinn was a sham and cover, then the acts and declarations of Dpran while they were engaged in carrying out their scheme were admissible against Quinn. Having given testimony tending to establish the conspiracy, it was error to reject the testimony of the witness, Peat, of the declarations of Doran, while engaged in selling the goods. State v. Thibeau, 30 Vt. 100; Jenne v. Joslyn, 41 Vt. 478; Lincoln v. Claflin, 7 Wall. 132. The letter to Hawley, Eolsom & Martin, written after the consummation of the scheme, was not admissible against Quinn. Only those declarations are admissible against other co-conspirators that are made while the common design is being carried out.
Quinn held a claim against Doran’s estate based on two notes given for twenty-two hundred dollars, and the defendant offered to show the declarations of Doran that he was the owner of the claim and entitled to the dividends. The declarations were made upon an occasion when a compromise of this suit was attempted. If material, it was admissible notwithstanding the attempted compromise, it being a fact admitted because it was a fact. Doon v. Ravey, 49 Vt. 293. This testimony was excluded, together with that offered in connection with exhibit F, the receipt for two thousand dollars given by Quinn to Mrs. Doran at the
There can be no doubt as to the evidence tending to show an intent on the part of Doran to defraud his creditors; and the fact, if established, that Quinn presented large claims against the estate and at the same time held two thousand dollars of the money of Doran, which was not offset against his claims and its existence kept concealed, we think had a strong tendency to show a like intent on the part of Quinn, and a confederacy between them; in fact, there was evidence tending to show an intent on the part of both to defraud Doran’s creditors at the time of the bankruptcy, and those who became creditors subsequently; so the acts and declarations of one became admissible against the other. In Bigelow on Fraud, 484, it is said: “Slight evidence of collusion or concert is sufficient to let in the declarations of one of the parties as evidence against all, though not made in the presence of each other; but there must be some evidence of the combination. Such may be inferred, for example, from the relation and conduct of the parties, and the circumstances surrounding them.” Although the parties represented by the defendant were not creditors of the estate, but became creditors of Doran subsequently, we think the proceedings of Quinn and Doran may be regarded as one continuous act, they having one common design and
The testimony as to the insurance policies, Quinn’s frequent visit to the store, and the word “ agent” being on the sign, was properly admitted under the opinion in this case, as reported in 55 Vt. 224.
IY. The defendant requested the court to charge the jury, first, that if Doran deposited five hundred dollars to secure Quinn against damages or costs in this suit, and there was evidence tending to show that he did, that it was evidence to be weighed by them as tending to show collusion in respect to the goods in question. Quinn claimed the goods and brought this suit to recover them; and the fact that indemnity was given him by Doran to secure him against an adverse result of the suit, had a tendency to show that the goods were Doran’s, not Quinn’s, and, as we understand, the evidence was admitted for that purpose. At the same time it might have been consistent with Quinn’s having but a limited interest in the goods, that he held them as secui’ity for a sum less than their value, and Doran under an obligation to protect Quinn against loss, the latter having taken the goods as security for the amount he had advanced to buy them of the assignee; or consistent with Quinn’s having sold them conditionally to Doran.
The court should not have told the jury that it was for them “ to say what it (Doran’s depositing the five hundred dollars to secure Quinn) tends to show,” and to weigh it upon the question of fraud, if they thought it had any ten
The fourth, fifth, and seventh requests were fully complied with; and the defendant was not entitled to a compliance with the thirteenth, as Quinn’s own testimony and exhibits in the case tended to show that he had not been paid in full for the goods. No other questions have been made in the case.
The .judgment is reversed, and cause remanded for a new trial.