State v. Hartigan

19 N.H. 248 | Superior Court of New Hampshire | 1848

Woods, J.

By the Revised Statutes, ch. 225, § 3, the prisoners, in this case, were entitled to be furnished, forty-eight hours before the trial, with a list of the witnesses to be used by the State ; but by an amendment of the statute, ch. 34, § 17 of the N. H. Laws, the State shall not be precluded from introducing other witnesses to rebut or explain any evidence of new matter offered by the defendants, or to discredit their witnesses.

To render admissible the testimony of a witness whose name has not been furnished according to the statute, the defendant must have offered evidence of new matter, or the testimony of the witnesses proposed to be introduced, must go to discredit those of the defendant.

By “ new matter,” however, is not to be understood merely that which proceeds upon the admission of the facts shown by the prosecution, and is in avoidance or explanation of them. Any thing set up in the way of defence that is capable of being disproved, whether it admits or avoids, or is in direct conflict with the case made, is to be regarded as new matter within the meaning of the statute, so as to admit the new witness to rebut or explain it. Indeed, it is not controverted that the alibi set up by the defendants is of that description, although it proceeds upon the utter denial of the facts proved by the prosecution. &

It is- equally beyond controversy that the testimony of Rogers was such as plainly and directly rebuts the evidence of the alibi, by showing, from the admission of one of the defendants himself, that such evidence could not possibly be true. But because that testimony goes further, and tends, in connection with other proof, to establish the principal case of the government; because, in short, it was suchas might have been admitted as direct evidence of the commission of the crime, it is said it cannot be admitted in the character of rebutting evidence.

But we cannot deem such a sound and reliable test of what is to be regarded as rebutting evidence. Where the new matter, like that in the present case, is in direct conflict with the evidence on the part of the prosecution, it might be very difficult to say of any evidence, introduced to rebut such new matter, that its tendency was not, in a greater or less degree, to corroborate the principal case. Undoubtedly, such is the tendency of that of Rogers. But any evidence whatever, drawn from the admissions of the defendants, tending to disprove the alibi, would derive its chief force from showing that the alibi set up was a mere afterthought, and a shallow device of conscious guilt. Yet its admission must be justified, if at all, upon the narrow ground that it rebuts the case set up by the defendant.

Such are the nature of testimony and the rules of law which regulate its use in trials, that it may be, and often is, of a character to be used for another purpose than the one which authorizes its introduction. But its liability to be so used has never been considered as any objection to the testimony, if it has been brought within any rule which allows it to be introduced to the jury. If evidence be competent for one purpose in a cause, it is properly receivable for that purpose, although for some other purpose it may not be admissible. In such a case, it is to be submitted to the jury as being relevant to, and as having a bearing upon the question which it is competent to prove. For these reasons and upon these grounds, we discover no error in the record of the judgment of the court of common pleas, which has been brought before us by these proceedings, and, therefore, are of opinion that the judgment must be affirmed.

Judgment affirmed,.