59 N.H. 328 | N.H. | 1879
I. The verdict was set aside, on motion of the respondent, for the misconduct of a juror. The trial was illegal and went for nothing, and the second trial was not a second jeopardy. State v. Prescott,
II. The respondent moved to quash the indictment, because it contained no distinct allegation that the assignments of perjury relied upon by the state were material questions at the trial before the magistrate where the perjury was committed. It is conceded that the indictment on its face, as it reads, is sufficient. It alleges that at the trial a certain question became material, reciting a large number of particular facts. Each fact is made a special assignment of perjury by an averment that each was testified to, and that the contrary in each case was true. Upon opening the trial the state's counsel gave notice that he should rely and offer proof only upon two of the assignments of perjury. The motion to quash was then made.
Admitting the indictment to be good, the motion to quash was not appropriate to meet the supposed defect. The claim was, that the materiality of the respondent's testimony before the magistrate was alleged in one entire averment, and that the several assignments of perjury could only be read and considered as one entire assignment, the whole of which must be proved; and if there were several distinct assignments, then the particular ones, selected by the state to try, were not distinctly alleged to have been material questions at the trial before the magistrate. If the assignments of perjury constituted one entire averment, the whole of which must be proved, and the state declared its purpose to prove only a part, then a motion that a verdict of acquittal be directed because of a failure to prove the indictment would have been appropriate. The motion to quash could not prevail for want of proof, but only for defect in the indictment. *331
But proof of the special assignments of perjury selected by the state's counsel was sufficient. Where the perjury is set out in one entire averment, the whole must be proved. But where there are several distinct assignments of perjury, proof of any one is sufficient. State v. Hascall,
III. The certificate of the chief-justice of the superior court for Suffolk county, Massachusetts, to the attestation of the clerk certifying the record, recited facts enough to show a due form of attestation, and was sufficient. The record was evidence of the rendition of the judgment, and of all the proceedings leading to the judgment. One of those proceedings was the defendant's plea of guilty, upon which fact one of the assignments of perjury relied upon by the state was made; and upon this point the record was competent and material evidence. Downer v. Shaw,
IV. James R. Wood testified to the larceny of the books. The testimony was not in aid of nor to contradict the record, but was substantive testimony on the question of the defendant's larceny, which was one of the matters of perjury assigned by the state; and the testimony was material and competent. The witness's evidence of the proceedings in the superior court affirmed the recitals in the record, and if not necessary, because the record was the best evidence, were at the worst merely immaterial, and could not have harmed the defendant. The exception to this evidence cannot prevail.
V. The cross-examination of the defendant's wife, for the purpose of fixing the time she was in Boston and of testing her recollection of the time when her husband wore the overcoat, did not exceed the reasonable latitude which the court, in its discretion, might allow. For the purpose of fixing dates the attention of the witness may always be called to particular and prominent events; and the event of the trial of her husband on a criminal charge was one that was likely to make an impression on her memory of the time, place, and circumstances attending it. The limitation of the evidence by the court to the question of time alone was sufficient to prevent any wrong to the defendant.
Exceptions overruled.
SMITH, J., did not sit: the others concurred. *332
