44 N.H. 383 | N.H. | 1860
That an information may be filed in a case like this, there is no doubt. State v. Dover, 9 N. H. 468. That it is properly authenticated, being signed by the solicitor as such, without setting forth the absence of the attorney-general, is also settled. State v. Farrar, 41 N. H. 53.
The catalogues were not competent evidence. If they had been objected to by the State, they could not have been introduced. They were mere hearsay; the statements, without oath, of the unknown parties who prepared them. If they had been accompanied by proof that Buchanan, upon the hearing before the selectmen, had admitted that he was there described as of Barnet, Yt., by his own direction or consent, or with his subsequent approval, that would make them competent evidence on this trial, as part of the history of that hearing, but no such proof appears. They were introduced by the defendants, and they can not object to them; and it would seem, from the manner of their introduction, that the solicitor and court might properly have understood, and no doubt did so, that the catalogues were put in evidence for all purposes. Nothing was said by the defendant’s counsel to the contrary, until the solicitor began to comment upon them, and we think the objection came too late.
If the solicitor had not understood that they were all in evidence, he would, almost of course, have made some attempt or offer to show the facts in relation to Dimond’s Case. It is evident the solicitor and the court did understand, as they had a right to, that the catalogues were put in evidence for all purposes; and if there was any fault any where it was on the part of the defendants’ counsel, in not stating, after they had proved the catalogue and the title-page, and one entry, that this was all they offered, and that they did not offer the rest; and we do not think that the verdict should be set aside on that ground.
The affidavits relating to Mr. Burr, the juror, do not satisfy us that he had formed an opinion on the merits of the case, or had so conducted as to disqualify himself as a juror. It would have been more candid and correct in him, when the request was made by the court, that those, if any, who had heard conversations on the subject, should rise, to have risen and stated the facts, and left the court to judge whether there was any legal objection to his sitting as a juror. There is a capital objection to the motion for a new trial on this account. It is not shown that the respondents and their counsel were not aware of the objection before the verdict was returned. Rollins v. Ames, 2 N. H. 349; Farmer v. Goodwin, Rockingham, June, 1861.
The objection to the first count of the information does not seem well founded. The court will of course read the interlined words where they will make sense, and will not much regard the position of the caret, nor allow themselves to be misled by it. Bad grammar and bad spelling is of little consequence where the sense is plain. Beside, the whole passage in which the interlineation occurs might be struck out without impairing the count. State v. Copp, 15 N. H. 212; State v. Bailey, 31 N. H. 521.
Under the instructions given by the court to the jury, “if Buchanan had gone to Plainfield, not intending to return to Barnet, but to reside in Plainfield one term, or one week, and to make Plainfield his home for that time, Plainfield would have been his domicil.” We think these instructions erroneous, for they leave out of view the intentions of the party to remain there permanently, or for some indefinite time, which is essential to make the place of actual residence the home of the party.
Verdict set aside.
