| Vt. | Feb 15, 1858
The opinion of the court was delivered by
I. The first question is in regard to the admission of the statement of Baldwin, at the time he was first discovered by the witnesses.
It is well settled that the declarations of a party, injured when no one is present, are not evidence to show the manner in which the injury occurred, however nearly contemporaneous with the occurrence. Such declarations do not tend to characterize the transaction, and are, by consequence, no part of it, and cannot be admitted as such. This has been decided in this state with reference to injuries upon the highway when no one was present who could be a witness.
The declarations of the party are received to show the extent of latent injuries upon the person, upon the general ground that such
Hence it clearly would not have been competent to show that Baldwin said, when first discovered, that he had been robbed, or that he had been robbed by the respondent, although undoubtedly such a statement would have some effect in convincing the jury that such was the fact. But it is merely hearsay, and depends for its force wholly upon the veracity of the speaker and the circumstances under which it was uttered. And it does not tend to characterize any act of the party speaking.
The testimony objected to in the present case was simply an inquiry in other words, if the witnesses had seen the respondent. And it is relied upon as equivalent to a declaration that Davidson had robbed him. It is indeed of less force than that, and is clearly inadmissible, upon the question of proving the corpus delicti towards proving which it seems to have gone to the jury.
Can this be received as part of the res gesta, which means, as part of the transaction ? Of what transaction, it may be inquired ? The transaction of the robbery, upon the theory of the government, was fully completed some time before this declaration was made. There was no transaction then in progress, of which this declaration could form a part, unless it was the pursuit of the respondent by Baldwin. And it is difficult to see how that had any tendency to show that a robbery had been committed, however it might bear upon the question whether the respondent was the party whose agency had produced the injury, whatever it was. There seems to have been no great question that the respondent was the only party who had been with Baldwin after he was last seen a few rods east of the point where he was then found. And if the injuries to Baldwin were not accidental, of which there seems no great probability, from the testimony detailed, it may be said there was not much question that the respondent had some agency in their production. But we do not perceive that the fact that Baldwin ■was pursuing the respondent tended to show that the case was one of robbery rather than of conflict. Baldwin would have been about as likely to pursue him in the one case as the other.
For so long as it is supposable that the injury may have happened by accident or possibly by other hands, the mere pursuit may have been to overtake the respondent as a friend to gain relief. The pursuit of the respondent by Baldwin, being then consistent with more than one theory of the production of the injury, the fact does not tend to* prove the case charged in the indictment. The corpus delicti must be assumed to be proved before the pursuit becomes of any importance, and, the testimony having been objected to, and no instruction being given as to its effect, it possibly might have been viewed by the jury as possessing some intrinsic importance, from the mere fact that it was ruled in, notwithstanding objection, which otherwise it would not have had in their minds. And as it went into the'case and was left to the jury as tending to prove the corpus delicti, is impossible to maintain its competency. And we do not decide that it had any legal tendency to identify the guilty party. But if it were confined to that point, and that were the only difficulty, I could, I think, make it a circumstance of some slight weight, and legitimately entitled to be considered if left to the jury upon that point only.
II. But the charge of the court seems to us to have been fatally defective.
The court, even when specially requested, expressly declined to instruct the jury in regard to any separation between the circumstances which tended to prove the corpus delicti, and those which went to identify the guilty party.
This was certainly important and usual in all criminal trials, where there is any doubt of the commission of the crime alleged. And some of the circumstances enumerated in the request, did not tend to prove the offence, e. g. Davidson’s knowledge that Baldwin had money about his person, or the contract he made with Baldwin, or Davidson’s appearance when he was arrested, or Baldwin’s inquiry for Davidson, as we have before said. And the jury were not told, what the cases all require, that when the corpus delicti is attempted to be shown by circumstantial evidence, it must
Verdict set aside and new trial granted.