State v. Lull

48 Vt. 581 | Vt. | 1876

The opinion of the court was delivered by

Pierpoint, Ch. J.

"We think that the court erred in excluding the testimony offered to be shown by Mr. Tripp as to what he told the respondent at the time he delivered Kefoe to him at the state prison in respect to fiis being.a violent and desperate man. It was an offer to show that Tripp told the respondent what the character of Kefoe was in respect to his being a violent and desperate man. The form of the words used is not so material as the idea conveyed. This evidence we think was fairly within the rule that the court laid down as governing the kind of testimony that was admissible, not particular acts of violence, but the character of the man in that respect. Such evidence would be material in determining how far the respondent was justified in inflicting the blow which he did, taken in connection with the surrounding circumstances and the evidences exhibited by Kefoe of an intention at the time to make an attack upon the respondent; and such evidence is always admissible as bearing upon the question as to whether a' respondent had good reason to fear an attack upon himself, and acted in self-defense.

It is no good answer to this to say that the respondent had himself testified as to what Tripp told him. He had the right to fortify his testimony by that of Tripp, if he could. The respondent stood in a position where his testimony was open to the criticism of being that of a man strongly interested in the result, and under temptation to exaggerate in his own favor; and that consideration would be quite likely to have an effect upon the jury, even though it might not be urged upon them by counsel.

As to the admissibility of the evidence of the acts of the said Kefoe prior to the time of his being brought to the state prison, as bearing upon the question of his insanity prior to his being assaulted by the respondent, it is a question with which we have some difficulty, and we do not pass upon it.

The result is, the respondent’s exceptions are sustained, and a new trial granted, and the case remanded.