State v. Buckman, 74 Vt. 309

State v. Buckman

74 Vt. 309 | Vt. | 1902

Munson, J.

The complainant testified to having discovered the respondent in a tree near her window upon one occasion, and, being asked if she had upon any other occasion, said her son discovered him there one evening. This was stricken out upon the application of the respondent, but the examiner proceeded to inquire which son it was, and when the occasion was with reference to the assault. The respondent asked that the answers to these further inquiries be stricken out, but the examiner said he expected fi> prove the occasion by the son, and wished this evidence in, as fixing the time. The testimony was then permitted to stand subject to exception. The son was afterwards called, and testified to an occasion when he thus discovered the respondent. It did not appear when or how the son’s knowledge of such an occurrence was communicated to> the mother. This testimony of the mother regarding as occurrence of which she had no personal knowledge, was improperly introduced. The matter was not one as to which *313a determination of the exact date was material. The mother had no means of determining the exact date, and did not undertake to do so. Her idea of the time was in fact widely different from that afterwards given hy the son. Nor can we say that the evidence was harmless. The corroborative effect of evidence that the witness had previously made declarations of the fact testified to is well understood; but this corroboration is proper only in special circumstances, not shown to have existed here.

The respondent testified in cross-examination, upon being-shown a letter, that he could not write or read writing; that he had had no letters written to any one except his wife during his imprisonment, but that he knew Mys. Dan Waite, an aunt of the complainant. The state was then permitted, under exception, to ask the respondent whether he wrote or authorized any one to. write for him in this way — “I want you and Katie-to see that everything is fixed up for the June term of court all right on my side, and you’ll never lose anything by it;” and the respondent denied having done so-. The jailer was called in rebuttal, and testified, without objection, that the respondent had given him letters to mail to parties, and afterwards,, under exception, that he had sent either three or four. So> it appears that the only statement of the jailer brought in under exception was the fact that as many as three or four letters had been sent. It is clear that this cannot have been harmful. The state’s attoirney -at first proposed to- offer in connection with this evidence a letter which he held in his hand, but upon objection being made to further inquiries, withheld the offer. It is claimed that this handling of the letter was prejudicial to the respondent, but we see nothing upon which error can be predicated. It is not claimed but that the question asked the respondent was proper cross-examination.

*314The complainant testified that while she was struggling with the respondent in an upper room which had windows facing the highway, one Maud Walsh drove into the yard and called the complainant by name, soi that she heard and recognized the voice, and that respondent also heard the call, and immediately desisted and went away. It appeared that at the time of the trial Miss Walsh was living with her parents at Claremont, N. H. It did not appear that the state had made any effort to secure her attendance, nor that she was unable to attend. The respondent requested an instruction that it was the duty of the state to produce Miss Walsh as a witness, and that its failure to do so, unexplained, was to be taken against it. This was properly refused. If the rule prescribing the duty of the state is as claimed by the respondent, and is one that entitles the respondent to a charge, it applies only to' witnesses within reach of its process. If its process was in any way available for the procurement of Miss Walsh, it was by virtue of some enactment of the state of New Hampshire, and the court could not take judicial notice of the existence of such an enactment.

The respondent made a similar request regarding the testimony of Horace Bowen, a son of the complainant, who lived with his mother, and was shown by her testimony to have known of some misconduct of the respondent on another occasion. This son was summoned by the state, and was in attendance during the trial, but was not called to the stand. The failure to call him to the stand may have been a proper subject of comment in argument, and a restriction of the argument in this respect might have been good ground of exception; but this treatment of the case was only one of many circumstances bearing more or less remotely upon the issue, and the court cannot be required to give a special instruction in regard to each piece of evidence.

*315The respondent was allowed an exception to the following remark made in presenting the state’s case to the jury: “The respondent stands convicted of perjury by his own statement that he could not read or write.” The respondent had testified, in response to an inquiry of his own counsel, that he could not tell when he went to work for Mr. Gill without looking at ■ his book. This afforded a basis for the argument, and the exception cannot be sustained.

Judgment reversed and ca/use remanded.