68 Vt. 289 | Vt. | 1895
The interview with Pitkin, in which the respondent failed to reply to a remark suggestive of his guilt, was legitimate, evidence. It is properly contended that mere silence affords no ground for an unfavorable inference, unless the circumstances are such as to call for a reply. Vail v. Strong, 10 Vt. 457, 463. But wethink the circumstances of this interview were such that the respondent was called upon to reply. The situation did not leave himi at liberty to treat the remark as idle or impertinent. The conversation was with one to wrhom he was then offering-chickens for sale, and to whom he had previously sold the-chickens claimed to have been stolen. If Pitkin suspected! the respondent’s honesty, it became him to ascertain-whether he was being made the purchaser of stolen property ;.- and when the honesty of the respondent’s dealing was ques->
The respondent and a witness produced in his behalf both testified that the respondent had the chickens of the witness, and that the two killed them at the house of the latter on the morning of the day they were sold to Pitkin. The evidence of the state tended to show that this testimony was false ; but outside of this there was no evidence that the respondent had procured the giving of false testimony. The court charged that if the respondent had procured a witness to testify falsely in his behalf concerning a matter material to his defence, it was evidence tending to show that he was guilty of the crime charged. It is said that this instruction authorized the jury to infer the respondent’s procurement of false testimony from the fact that false testimony was given, and to infer his guilt from the fact of this procurement; and that this was in conflict with the rule which forbids- the basing of an inference upon an inference. We think, however, that the respondent’s procurement of false testimony was not in this case an inference from the tact that false testimony was given, but a matter which appeared directly from the testimony itself, if found to be false. If the testimony of the respondent’s witness was false, the respondent must have known it, for it purported to be the ■recital of a transaction in which the two were jointly ■engaged; and the appearance of both upon the stand in support of a fictitious recital of this nature afforded evidence of concerted action. The character of the testimony bore -directly upon the question of the respondent’s accountability -for its production; and when the false testimony afforded -this inherent evidence of its intentional use, the jury might well be permitted to draw from it an inference of guilt.
The evidence introduced by the state was wholly circumstantial. It does not appear what circumstances were testi
Jzidgment that there is no error in the proceedings, and! that the respondent take nothing by his exceptions.