77 Vt. 384 | Vt. | 1905
The prisoner is under conviction of murder of the second degree for killing Ephrain Root on- October 12, 1903. It appeared that Root lived at John Green’s at the time of the homicide, and that the prisoner had made it his home there for 'about eighteen years next before June, 1903.
The State claimed, and its testimony tended to show, that Root had so ingratiated himself into the favor of Mrs. Green, John Green’s wife, as to interrupt the prisoner’s improper relations with her, and that the prisoner slew him, to get rid of him.
The witness further testified that he finally consented to go to Green’s as the prisoner requested, and that on a Tuesday morning the prisoner took means to get some money for him to go with; and subject to exception he said that he received an order for three dollars from Mr. Belden by the prisoner’s direction, given in the witness’s presence. It is ■objected that this was error, for although it may have been permissible for the State to show the employment of the witness, and that he was paid by the respondent, the details were immaterial, and tended to divert the minds of the jury from the main issue, and to prejudice them against the prisoner.
The witness further testified that he went to Green’s as the prisoner desired, and there said and did what the prisoner directed him to, and told what that was; that he there saw and talked with divers persons, whom he named, and among them, Mrs. Green, from whom he received a letter that the prisoner wanted he should get, and which he read there, carried away, read to the prisoner, and gave to him, telling him all he had said and done. The letter was produced, and the prisoner admitted that he procured it to be written. To the witness’s saying that he read the letter there, the prisoner excepted, as immaterial and prejudicial. It is enough to say that the mere fact that the witness read the letter there, and to himself it would seem, however immaterial, signified nothing, and could not have been harmful.
For the purpose of fixing the dates of certain transactions between the prisoner and the witness Chatfield, one Stoclcwell testified for the State that on September 29th he let Chatfield have $3.00; which he charged to Farr & Kennedy, and which was paid to him on October 3d. To the admission of this testimony the prisoner excepted as too remote. But whether testimony, relevant in its nature, is too remote in time or place, is a preliminary question for the trial court, and will not, ordinarily, be revised. Dover v. Winchester, 70 Vt. 418, 41 Atl. 445; State v. Doherty, 72 Vt. 381,
The State introduced evidence tending to show that in the summer or fall of 1903, a stranger came to Mrs. Wiley’s house,' — where Root lived before going to Green’s, — and stayed there two or three days, having no apparent business, but remaining in the house most of the time, apparently watching the premises, and particularly Green’s house; and it was claimed that the prisoner procured this man to go there for the purpose of frightening Root and Mrs. Green, and thereby breaking up their intimacy, which, the State claimed, excited the prisoner’s jealousy. The only evidence claimed to have any tendency ho show the stranger’s business was that of the prisoner’s statements to various witnesses. To show the prisoner’s connection with the alleged detective, and his motive and purpose to get Root out of the way, Mrs. Huntley, a witness for the State, testified, among other things, that the prisoner told her that he had met a detective, who offered him fifty dollars to say anything against Mrs. Green’s character; that he told the detective he knew nothing about her character, and should have nothing to say if he did; that he had been up tc Mrs. Green’s, and she asked him to say nothing about it, and cried, and told him they were going to make trouble for her and Root, and wanted him to put in money to help-her; that he heard that Mrs. Wiley had a couple of detectives watching Root and Mrs. Green, and that the first thing the witness would hear there would be one of them killed; that he asked Mrs. Green why she did not send Root away, and she said that Root had always been a dog for everybody, and she should not turn him out for anyone; that he told Mrs. Green that Root had made a good dog for her, and he should hate awfully to be in Root’s boots; that there was jealousy between Mrs. Wiley and Root, and he thought there would
For the purpose of further showing the like motive" and purpose on the part of the prisoner, Mr. Huntley was allowed to testify under exception, that he met the prisoner one day, and spoke to him' about a pair of horses of the prisoner’s; that in answer to his inquiry the prisoner said the Greens had all seen the horses except Mr. Green, who was then in Canada; and that the prisoner then added that he supposed Root and Mrs. Green were going to Canada on a visit when Green got back, that he had heard they were, but did not know whether they would or not. It is objected that this addition was inadmissible, and had no bearing on any issue in the case. But we think it was admissible for the purpose for which it was offered. The prisoner went out of his way to say that, which was susceptible of being thought to indicate that his mind wras brooding on the relations between Root and Mrs. Green, which would strengthen the claim of the State in this respect.
A witness called by the State testified that a short time before Root was killed, he had a conversation with the prisoner in which he said in reply to a question by the witness, that if Root stayed at Green’s it would be doubtful about the witness’s getting his pay from Green continually. It is objected that the prisoner had a right to answer this confidential inquiry, and that the answer given in such circumstances could have no bearing on any issue in the case. But it does not appear that the inquiry was confidential, nor that the answer was objected to on that ground; and the admissibility of the answer is now questioned only because of the circumstances in which it was given. But those circumstances go only to its weight, not to its admissibility.
Elmer Martel, a witness for the State, testified to conversations with the prisoner in which, at the prisoner’s solici
The State introduced the testimony of many witnesses, to-corroborate Martel’s story, to which the prisoner excepted, for that the testimony was not corroborative of his story; that the circumstances thereof were not material nor in issue, and-not such as a corroboration could be predicated upon.
Before this line of testimony was introduced, Crapo and. wife had testified without objection about the prisoner’s being-at their house in Goshen on the Brandon side of the mountain, near the top, and about his having gone out with a lantern, claiming to have lost a blanket, and about seeing him again, when going to church the next day, Sunday, after he had. left their house to go towards Brandon, returning from that, direction on the road to Rochester. The first of these many witnesses was one Severy, by whom the State offered to show that he was at work on the mountain road the 3d of October, and saw the prisoner and the Martel boy there. Thereupon, the prisoner admitted that he stayed at Crapo’s over night, and. went out with a lighted lantern, and that he understood that Martel went over the mountain at the time he testified he did.
It appeared that the prisoner procured a revolver from his-brother in Springfield, Mass.; and there was evidence that he-had Hubbard’s riñe and said revolver in his possession when staying at Hubbard’s, and that the rifle and the revolver were in Martel’s possession at places away from Hubbard’s after-the prisoner borrowed the rifle. The State’s evidence tended, to show that Martel procured the revolver from the prisoner at Hubbard’s on Friday night, October 2d, and that he re
No claim was made that either the rifle or the revolver was used in killing Root; but Martel’s testimony bended to show that when he had the rifle and the revolver in his possession, the prisoner had reason to believe that he might use the rifle to shoot Root according to the plot; but there was no evidence that he attempted it.
It is objected that if Martel’s testimony had any tendency to connect him or the prisoner with Root, it was, in effect, that pursuant to an agreement with the prisoner, Martel undertook to kill Root by shooting him, and started upon that expedition, but failed in his purpose; that though it may be claimed to have a tendency to show that the prisoner intended to make way with Root, it cannot be claimed to have any tendency to show that Root’s death was the result of a plot on the part of the prisoner to murder him with Martel’s assistance. It is contended that inasmuch as Martel neither had, nor is claimed to have had, any part in killing Root, it was enough for the State, if its purpose was to show a murderous intent on the part of the prisoner, to introduce evidence of the plot, and that it was unlawful to prejudice the prisoner by evidence of Martel’s attempt to carry out the plot, whether the abandonment was from lack of opportunity or because Martel changed his purpose; but that the State, not content with this, went further, and introduced the testimony excepted to, the real effect of which was, to show that in the afternoon of October 3d, the day in question, Martel was seen by some of the witnesses on the Brandon road on the Rochester side of the mountain, and by some on the Brandon side, sometimes with a gun, and sometimes without one.
It appeared that Green’s mill was on that road on the Rochester side of the mountain, and that Bruno Green’s house
■ Some of said witnesses testified to seeing Martel at Green’s mill in the afternoon of the day in question, and in the road below Mrs. Derby’s house, without a gun, and some, that he disappeared up the road, followed by the prisoner, who had a horse and carriage, and soon reappeared at Mrs. Derby’s, following the prisoner, and had a gun, which other testimony tended to show was Hubbard’s rifle. Some testified that the prisoner and Martel talked together at the mill. Others testified to meeting them later that afternoon when the witnesses were returning from Brandon. Some said they met them near the top of the mountain on the Rochester side; and some, that they met them near the top and at varying distances below the top, on the Brandon side, Martel always being behind the prisoner, and always carrying a gun, except below where he said he left the rifle in the ditch beside the road, he was seen without a gun.
There was testimony other than Martel’s, tending to show that the prisoner and Martel slept together at Hubbard’s on Friday night, October 2d, and' that the prisoner rose early Saturday morning, October 3d, and left Hubbard’s alone, saying he was going to Hancock; that he'returned to Hubbard’s during the afternoon, and inquired for. Martel, and went to several houses in the vicinity in search of him; that he borrowed Hubbard’s rifle Friday night, October 2d, and that the rifle was returned to Hubbard’s on Sunday, October 4th, and that the prisoner’s revolver was in his own possession that Friday night, and was brought to Hubbard’s that Sunday with Hubbard’s rifle, by Martel.
The prisoner testified that he went across the mountain Saturday, October 3d, and passed Martel between the houses of Bruno Green and Mrs. Derby, and that Martel rode with
"It is further objected that if the foregoing testimony, •aside from Martel’s, is to be regarded as circumstantial evidence from which is to be inferred the probability of the prisoner’s connivance with Martel in a plot to murder Root, it is lacking in that it has no tendency to confirm Martel’s statement of procuring the rifle from the prisoner; and further, that it shows that having procured the rifle, he .did nothing with it except what was perfectly innocent; that unquestionably it has no tendency to prove that the prisoner 'committed the crime charg-ed, namely, the murder of Root with a bludgeon by lying in wait for him at his stable door on the night of October 12th, and that it cannot be connected with the alleged design to accomplish such a crime; that the most that can be claimed for it is, that it shows an opportunity to carry out the alleged plot if in finding Root the circumstances favored its execution.
To the objection that though Martel’s testimony may have tended to show that the prisoner intended to make way with Root, it did not tend to show that Root’s death was the •result of a plot on the part of the prisoner to murder him with Martel’s assistance, and that, inasmuch as Martel had nothing to do with the murder, it was enough for the State, if its purpose was to show a murderous intent on the part of •the prisoner, to introduce evidence of the plot, and that the details of Martel’s attempt to execute it were inadmissible and harmful, — the answer is that though harmful they were admissible, both because they corroborated Martel’s story of the plot itself, and because they so connected the prisoner
To the further objection that if the foregoing testimony, ■other than Martel’s, is to be regarded as circumstantial evidence from which is to be inferred the probability of the prisoner’s conniving with Martel in a plot to murder Root, it is lacking in that it has no tendency to confirm Martel’s statement of procuring the rifle from the prisoner, — the answer is that it does have such tendency, especially when taken with the testimony, other than Martel’s, of the prisoner’s having ■borrowed Hubbard’s rifle Friday night, October 2d,.the expedition over the mountain being the next day, when that testimony shows the prisoner and Martel at Green’s mill, talking together, Martel having no gun; shows Martel going up the road from there, having no gun, but followed by the prisoner with a horse and carriage; shows him between Bruno. Green’s and Mrs. Derby’s, having no gun; but when he gets to Mrs. Derby’s he has a gun, and the prisoner is ahead of him instead of behind him as before; and the testimony tended to show that the gun he had was Hubbard’s rifle that the prisoner borrowed the night before.
The further objection that the testimony has no tendency to show that the prisoner committed the murder with a bludgeon, as charged, and cannot be connected with ’the alleged intent to* commit such a murder, — is not tenable; for an intent to murder in some way, and an attempt to murder in a particular 1 way, are evidence of a murder in another way.
One Mattison testified that he was at work on Brandon mountain that fall, and one day about the middle of the afternoon, a young man came along with a rifle, which he took and
A witness testified to meeting a stranger near Goshen Corners between half post six and seven o’clock Saturday evening, October 3d, the day of the expedition, and of noticing that he was quite short and walking rapidly towards Brandon'. Another testified to meeting a man a little earlier that evening between Crapo’s and the Corners, with an unlighted lantern. It is objected that this testimony 1 was too ' conjectural; that it might or might not have been the prisoner, as to which the jury was at liberty to guess. But we think, taken with the other testimony as to that expedition, it fairly tended to show that it was the prisoner.
The testimony of Tenora Washburn, objected to for the same reason, was entirely unimportant and clearly harmless, and pointed to no time here involved, nor to any other particular time.
The State introduced the testimony of several witnesses in corroboration of Martel’s testimony about recrossing the mountain on Sunday, October 4th, the next day after said expedition, drawing his buggy, taking the rifle from the ditch beside the road where he left it the day before, and having a
We recognize the rule invoked, that you cannot prove a crime by proving another and a disconnected crime. But i£ this testimony is to be regarded as tending to show the crime of attempting to commit the crime charged, the rule does not apply, for the attempt is not a separate and disconnected crime, but, as we have seen, is so connected with the crime charged as to be admissible to prove it.
The cases relied upon to show that this testimony was not legally corroborative, are to th¿ effect that to constitute such corroboration of an accomplice as will make it safe for a jury to convict on his testimony, the evidence must tend to confirm his testimony upon a point material to the issue in the sense that it tends to prove the guilt of the prisoner. But they recognize that you may support an accomplice by evidence short of that, the same as you may support any other witness. And this was done in Commonwealth v. Bosworth, 22 Pick. 397, as explained in Commonwealth v. Holmes, 127 Mass. 424. Brown v. Welch, 38 Vt. 241, is illustration of this kind of corroboration. In the case at bar the State did not rely for conviction wholly on the testimony of Martel.
The prisoner having introduced evidence tending to show that Martel was .influenced by threats of imprisonment to tell the story he did, it was competent for the State to show that he made similar statements before the alleged threats, about the prisoner’s having hired him to kill Root. State v. Flint, 60 Vt. 304, 14 Atl. 178. Nothing is suggested in argument to distinguish this case from that on this point.
The objection for immateriality to- Hubbard’s testimony that he saw the prisoner’s repeating rifle and revolver when
It appeared that Root received his death blows in the -evening at his horse barn near John Green’s house. Peter Green, son of John Green, testified that he saw a man that -evening looking in at their kitchen window who he thought was the prisoner, but would not swear positively. The State offered to show an experiment made in the night when there was snow on the ground, with everything arranged in the kitchen as nearly as possible the same as when the witness said he saw the man’s face, the result of which was confirmatory of the witness’s testimony. The offer was excluded on objection, but the ground of exclusion does not appear. Later in the trial, the prisoner introduced evidence of an experiment the evening of the homicide, when Peter went out and stood by the window, and his mother and brother looked out to see if they could tell him. S.he said she sat in the same place Peter did, and looked out of the window, and was then asked if she looked “to see if she could tell who it was out there,” and answered, “No, sir: I saw some one there, but could not see who it was.” Thereupon the State renewed the offer of its experiment, to which the prisoner objected that if any ■evidence made it admissible it came from Mrs. Green in answer to a question that did not call for it, and that no evidence had been introduced tending to show similarity of conditions outside the house as to light there and other sursoundings, nor what the conditions were outside, any further than Mr. Fellows stated. The objection was overruled and the testimony admitted. It does not appear what Mr. Fellows •stated. It is contended that the experiment was not illustrative of the condition of the subject-matter at issue in the controversy; that the point made by the prisoner was, that Peter’s
The State contends that the original transaction was not of such a nature as to render it legally incapable of being the subject of experiment, and that if its essential conditions were reproduced, which must be assumed, the contrary not appearing, the experiment and its result were admissible on principle. But if not, that the prisoner opened the door, and made the testimony admissible as rebutting evidence. And this is manifestly the view the trial court took of the matter, and we think correctly; for it does not appear that the prisoner, in the time of it, disavowed the irresponsive part of Mrs. Green’s answer, from which it would seem that he was letting it stand for what it was worth, and the court might well regard the door open for rebuttal.
Although it was not claimed that Martel killed Root, yet he was under such a cloud that it was material for the State to guard against such a claim by showing that he was where he could not have killed him; for every reasonable hypothesis except that of the guilt of the prisoner had to be excluded, and
The State claimed that Root was killed by "blows upon the head with a stake of an old hayrack that the prisoner took from Hubbard’s, which, in his flight back to Hubbard’s he threw into the bushes beside the road, where it was after-wards found. A piece had been split from the stake when found, and a splinter, found the next morning after the homicide near where it was committed, .exactly fitted the stake, thus demonstrating that it was split from the stake. Hubbard testified that he once had an old-fashioned hayrack with bedpieces, raves, and stakes, and described how the raves were held up by the stakes.
Another stake was introduced in evidence, numbered 21,. concerning which another witness testified that in November, 1903, he saw under Hubbard’s carriage shed the raves of an old hayrack with holes bored through them, evidently to set down onto stakes; that he measured the holes the Sunday before he testified, and last saw stake 21 at Hubbard’s that day. To the admission of the testimony of this witness, and the introduction of said stake in evidence, the prisoner excepted. The prisoner introduced evidence of the finding of other stakes, at other places in the vicinity, but it did not appear whether those stakes were similar or dissimilar to the one found beside the road.
In support of said exception it is argued that there was no evidence to connect the prisoner with stake 21, nor to show that he had any knowledge of its existence, and consequently that both it and the testimony concerning it were inadmissible. But the question is not whether the evidence connected the prisoner with that stake, nor whether he knew of its existence, but whether that stake connected the prisoner with
The prisoner claimed, and his evidence tended to show, that Root’s death was accidental. At the close of the charge, his counsel suggested that it did not sufficiently explain that in considering whether the death was accidental or not, the prisoner was not obliged to show how it might have happened, but if from evidence of facts that existed, or were ■shown by the evidence to exist, the jury should be satisfied in their own judgment, regardless of the prisoner’s theories, that there was a reasonable doubt whether it was accidental or not, the prisoner was entitled to acquittal. The court said it thought it had exactly covered that point, and refused to charge further, and the prisoner excepted to what was not complied with in accordance with the suggestion.
It is contended that the charge was erroneous in that it limited the jury to a consideration of the matter solely as presented by' the arguments of counsel based upon the evidence, whereas the suggestion ought to have been complied with; that the charge expressly put the question thus: “If you consider that the theory of an accidental death cannot reasonably be entertained upon this evidence,” whereas it ■should have been, and if the charge had been qualified as suggested, would have been, put thus: “If upon this evidence you are satisfied that there is no reasonable doubt that the ■death was not accidental but the work of design.”
But if the charge is to be regarded as limiting the jury .as claimed, no error appears, for it does not appear but that ■counsel presented the matter in every view warranted by the ■evidence. But we do not think the charge, when taken as a whole, did limit the jury as claimed, but left them; to an independent consideration of the matter upon the evidence; and that they must have so understood it.
Judgment that there is no error in the proceedings of the county court; that the respondent take nothing by his ex~ ceptions; and that execution of the judgment and sentence be done.