75 Vt. 185 | Vt. | 1903
Information for rape upon a girl under sixteen years of age. The State introduced evidence tending to show the commission of the crime. The respondent denied the charge, and produced evidence tending to show that at the time alleged he was sick at a house three miles distant from the place where the crime was laid. He also introduced two letters, which purported to have been written by the prosecu-trix, and which the respondent testified he received by mail while he was in prison, after a former trial of the case. They stated, in substance, that the writer was sorry the respondent was in prison; that she hoped he would not blame her for it; that he was not the man who' assaulted her, but that it was a stranger who resembled him; that she told her grandmother,
As bearing upon this question, the State’s Attorney, subject to the respondent’s exception, was permitted to inquire of the prosecutrix and of her father and grandmother whether the threats and statements mentioned in the letters were made to her, and the witnesses answered that they were not made.
I. . The letters may have been genuine, written by the prosecutrix for the reasons assigned in them; or she may have written them, and through fear of or favor for the respondent, fabricated the story about the threats; or they may have been forged. These were questions for the jury. It was clearly competent for the State to prove in rebuttal that the threats were not made, in which case one of the other alternatives must have existed, for the prosecutrix could not have truthfully written about threats that had never been made. The respondent’s counsel argues that the material parts of the letters were what related to the vital question in the case — the respondent’s identity with the man whom the prosecutrix had charged with the crime; that the threats were not claimed by the respondent as evidence, and that they came into the case only as an incident. But the letters were put in by the respondent as evidence, and, while it is true that what was-material to his defense was what they contained in respect to his
II. In argument the State’s Attorney’s assistant referred to certain evidence introduced by the State as “real evidence,” and the respondent’s counsel requested the Court to instruct the jury that there was no such legal classification, with which request the Court complied, and instructed them that all evidence in the case was real evidence; that nothing comes into a case except what is real evidence; but that there was no such classification as “real” or “unreal” evidence, and said: “All the evidence before you is real evidence, to be considered by you, and weighed for what it is worth in producing an effect upon your minds, one way or the other. Everything' that is not real evidence is not evidence at all, and is kept out of the case.” To this part of the charge the respondent excepted, but we think it contains no error. It was, in effect, that all the evidence that had been admitted was to be considered and weighed for what it was worth.
III. The part of the charge which is recited in the exceptions upon the subject of alibi was favorable to> the respondent, and was a correct statement of the law: “In going along with a consideration of the case you may have occasion to consider the question of an alibi in another connection. That
To the other part of the charge there was no exception, and we may assume that the jury were instructed that they must find beyond a reasonable doubt that the alibi was false and fabricated, and that the respondent was in fact at the place where the crime was committed, as alleged in the information. That the Court had previously given instructions upon the subject of alibi, is apparent from his introductory remark in the part quoted, that the jury might have occasion to consider the subject “in another connection.” If there was error in the part of the charge not recited, or in omission to charge, the respondent should have brought it upon the record. In the part recited no error appears.
IV. After the case had been given to the jury, they returned to the court-room, and asked to have the direct testimony of two witnesses read to than, and the request was granted. The respondent’s counsel requested that the cross-examination of the two witnesses be also read, which was refused. It was discretionary with the Court whether to grant or deny the jury’s request. It was sufficient that he complied with it as made. The respondent had no legal right to have more read than the jury requested.
Petition por New Trial.
This petition is based upon two grounds; ist, that a newly discovered witness, Rider, will testify that he mailed a letter, written by the prosecutrix and addressed to the respondent, about the time the latter claims to have received the one in question; 2nd, newly discovered evidence to impeach the general reputation of Mrs. Fosby, the grandmother of the prose-cutrix, for truth and veracity.
As the letter was placed in the hands of the respondent’s counsel who defended him in the first trial, in March last, and as Mrs. Fosby had been an important witness in that trial, it would seem that all this evidence might, with reasonable diligence, have been discovered and used at the second trial. This is especially true in respect to Rider, in view of the facts that it is stated in the letter that it would be mailed by some person without the knowledge of the writer’s father and grandmother, and that Rider was boarding at the house where, and at the time, the letter was claimed to have been -Written, so that he was obviously a person to be seen and inquired of at once in order to supply this important piece of evidence; yet it appears that his statement to the respondent’s wife and his affidavit were not obtained until the August next after the June term when the case was last tried. It is true that he was in an adjoining county most of the time, but not beyond easy reach.
But, apart from all question of due diligence, the testimony of Rider is unreliable. In August, Mrs. Manning, the respondent’s wife, obtained his signature to a writing which
In a subsequent affidavit, taken by the State, Rider denied having mailed any letter for the prosecutrix, but says he saw her writing, and that she told him she was writing to her aunt about finding her a place to work. This is also, in substance, the affidavit of the prosecutrix.
We have carefully considered these affidavits and the statements made by Rider to Mrs. Manning and to others, and the circumstances in which they were made, and are of the opinion that any • testimony that Rider might give in a new trial of the case would be of but little, if any, value.
A considerable amount of testimony has been taken by the respondent and the State bearing upon the question of Mrs. Fosb}^ reputation for truthfulness. The impeaching and the sustaining testimony are of about equal weight. Mrs. Fosby is evidently a poor and obscure person, with no decided reputation in this respect; besides, she testified on two trials of the case, and no attempt was made to impeach her.
While it is the rule, as stated in 1 Bish. Crim. Proced. § 1273, that new trials should be awarded more freely in criminal than in civil cases, here the newly discovered evidence is not so conclusive and decisive in its character as to raise a probability of a different result on another trial. State v. Doherty, 73 Vt. 389, 50 Atl. 1113.
Under a supplemental petition, which the respondent has been allowed to file, he presents the affidavits of Harry Dyer,
Petition dismissed.