70 Vt. 288 | Vt. | 1898
The respondents were indicted and tried on the charge of having murdered George Marsh, the husband of the respondent Marsh, by means of arsenical poison, on January 29, 1896. On the trial several exceptions were taken which the respondents’ counsel have not urged in their brief, nor in their argument, but say that they do not waive them. The court has examined these-exceptions, but, as it has discovered no error in the proceedings of the trial court in regard thereto, these exceptions will not be further considered in this opinion.
(1) The exceptions taken in regard to allowing the State the same number of peremptory challenges, which by law is allowed to both respondents, are fully considered and decided in the recent decision of State v. Noakes, 70 Vt. 247. These exceptions are not sustainable.
On these principles, the declaration of the deceased, for the purpose of establishing that he then had arsenic in his possession, was clearly hearsay, and subject to the infirmity of that class of evidence. The fact that he then had arsenic in his possession for the purpose declared, if proven by competent testimony, with nothing more shown in regard to it, would have no legitimate tendency to establish that the deceased had it at the time of his final sickness, nor that he used it to produce it. It might raise a conjecture in a speculative mind, but not a probability, in a reasonable one, that he had it and used it at the later date.
The declarations of the deceased offered*fto be shown by Lyman Farrar and excluded by the court, were properly excluded under the principles already stated. So, too, was the testimony offered that the witness purchased arsenic for the deceased in 1892. There was no testimony offered in connection with it, tending to show that the deceased kept, or had it, so he could have used it to produce his last sickness.
The declarations of the deceased offered to be shown by H. S. Fuller are governed by the principles already stated. Nor were they competent to show that the deceased was acquainted with the character and use of the drug. They only tended to show that he had knowledge of the character and use of horse powders of which arsenic formed some indefinite and undisclosed part. None of the authorities cited and relied upon by the respondents are in conflict with this holding. Commonwealth v. Trefethen, 157 Mass. 180, cited by them, treats quite elaborately of the purposes, for which declarations of a deceased person may be shown as independent evidence to establish relevant facts; and holds
(3) The exceptions to the improper answers to the proper question® put to witness Harry Marsh cannot avail the respondents. This has been so often decided by this court that we need not state the reasons given for so holding. Randolph v. Woodstock, 35 Vt. 291; Houston v. Russell, 52 Vt. 110; Frary v. Gusha, 59 Vt. 257; Lawrence v. Graves, 60 Vt. 657; Foster's Exrs. v. Dickerson, 64 Vt. 233, point 13 of opinion; Cutler & Martin v. Skeels, 69 Vt. 159. Such improper answers are given without fault of the examining counsel or of the trial court. All that the court could do would be to caution the jury in regard to the use they should make of the improper answers. Frary v. Gusha, supra. It is shown that the court emphatically did this in regard to these improper answers, and without such showing this would be presumed to have been done. Frary v. Gusha, supra. State v. Meader, 54 Vt. 126, relied upon, is clearly distinguishable in principle from the cases governing this class of answers. In State v. Meader, the counsel offering the improper testimony took the risk of being able to produce such connecting testimony as would render the testimony excepted to admissible, and failing to produce it,
(4) The witness F. F. White was asked what he observed in respect to the conduct of the respondents towards each other on an occasion, the day after the death of the deceased, and answered, “I observed they were very intimate.” To this answer the respondents excepted, for that it was not responsive to the question, and, as given, was simply an expression of the witness’s opinion. The court then had the witness state the acts which he observed which gave him the impression that they were very intimate. There was no error in this action of the court. The rule governing the admission of this class of evidence is well stated by Peck, J., in Bates v. Sharon, 45 Vt. 481, as follows: “Where facts are of such a character as to be incapable of being presented with their proper force to any one but the observer himself, so as to enable the trier to draw a correct or intelligent conclusion from them without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed, to a certain extent, to add his conclusion, judgment or opinion.” This is given as an exception to the general rule, that the opinion of non-expert witnesses is inadmissible. This exception has been frequently recognized by this court. Smith v. Miles, 15 Vt. 249; Crane v. Northfield, 33 Vt. 124; Cavendish v. Troy, 41 Vt. 108; Fulsome v. Concord, 46 Vt. 135; Knights. Smythe, 57 Vt. 529; State v. Ward, 61 Vt. 153; State v. Bradley, 64 Vt. 466. This answer if non-responsive to the question, comes within this exception to the general rule.
Such impressions upon the witness’s mind, produced by observing appearances and acts, is more in the nature of a resultant fact than a mere judgment .or opinion derived from an attempted description of the appearances and acts.
(5) The testimony of Mrs. Charles Nichols was clearly admissible against Mrs. Marsh. Whether it was admissible against respondent Buzzell depended upon whether he heard what Mrs. Marsh said. Where he was, where Mrs. Marsh was relatively to him, and the tone of voice in which she spoke, were given in evidence. Whether he, under the circumstances, considering his partial deafness, must have heard what Mrs. Marsh said, was a question of fact to be determined by the jury. The testimony tended to show that he must have heard. It was properly submitted to the jury. They were explicitly charged not to consider it against him unless they found that he heard what she said. He did not except to the submission of the question to the jury. His exception was that he was so deaf that he would not have been likely to hear what wassaid. This exception is not sustainable, if the evidence, as it clearly did, tended to show that he probably heard what was said. The other exceptions to this witness’s testimony are not now pressed and, we think, are not sustainable.
(6) The respondent Marsh excepted to the ■ testimony given by Amanda Bishop because it did not sufficiently appear that the note in question was written by her, and, secondly, the witness had voluntarily parted with its possession. No other exception was taken to the admission of this testimony. The witness testified that she had been accustomed, from time to time, to receive notes from her to carry to respondent Buzzell, and so received the note in question, but did not know that it was written by Mrs. Marsh, but thought there was no other person then confined in the department of the jail occupied by her. The witness did not say whether the note had the name of
The witness occupied the position of housekeeper in the jail. She testified that she showed the note to the jailer, who told her it was right for Buzzell to have it, and she gave it to him. This showed the note out of the possession of the witness by the direction of Mrs. Marsh. Therefore Mrs. Marsh cannot be heard to complain that the note was wrongfully out of the witness’s possession. However wrongful her parting with the note was as regards the State, it was not wrongful as regards Mrs. Marsh. But the witness stood in no such relation to the State that she could properly withhold it, in its behalf. We are not aware of any rule of law, which made it the duty of the jailer, even, to retain the note in his possession. He is charged with the duty of keeping, safely, the prisoner; and, to that end, may examine communications to and from him. He is not charged with the duty of seizing, or looking up evidence against him. A party who intentionally destroys the best evidence for the purpose of enabling him to supply its place by secondary evidence, and perhaps without such specific purpose, deprives himself of the right to introduce secondary evidence. But, whether the circumstances are such that the party has estopped himself from using secondary evidence, must be a question for the trial court. Whether its findings from competent testimony in this respect can be revised on exceptions in this court, may be questionable. If they can be, no such facts, in this case, were shown as made it the duty of the
(7) The admission, in rebuttal, of testimony, in regard to the health of the deceased, as bearing upon its suicidal influence, or tendency, comes within the decision of State v. Magoon, 50 Vt. 333, in which this subject was fully considered. The testimony admitted in this case was not open to the objection which existed in that case, that its tendency was to strengthen, incidentally, the case made by the state in the opening. A careful examination of Dr. Johnson’s testimony, both as set forth in the exceptions, and in the transcript of the stenographer’s minutes, shows that his attention was called to the health of the deceased during the summer of 1893, and for a week before and during his last sickness; and then, only with reference to his physical condition, as in regard to his ailments, and the doctor’s treatment of him. The witness’s attention was not called to his condition of health, at those times, as bearing upon a suicidal influence or tendency. Whether the State might have developed this subject, in its opening, is immaterial. The respondents first claimed — and introduced evidence to support the claim — that his health was such as might induce suicidal inclinations, and the State had the right to rebut this testimony, as it did. Both sides without objection, pursued this order of introducing the testimony. To deprive the State of the right of rebutting the respondents’ testimony on this subject, in the order of the trial pursued, would shut out any investigation of or inquiry into this claim first raised by the respondents in their testimony.
(8) “At the close of the evidence, and before argument,
(9) To the closing argument of Mr. Plumley, concerning the proceedings at a court of inquest the respondents excepted. In support of this exception the respondents contend that Mr. Plumley was allowed to state facts to the jury which were not in evidence before them, and to base his argument thereon. It was in relation to the testimony of Hiram Henry. His testimony was important. In substance, he testified that on the night before George Marsh died, he was sitting on the lounge with respondent Buzzell, in a room adjoining the one in which Mr. Marsh was sick and lying upon the bed; that Mr. Buzzell arose from the lounge, and went to a cupboard in the room, nearly opposite the lounge, and took on the point of a teaspoon, from a glass sauce dish, a white powder therein in bulk; then went into the room where Mr. Marsh was, mixed the powder in water and gave it to Mr. Marsh; that the water was taken from a tumbler which Mr. Buzzell took from a corner of the room out of his sight, where a stand was, but came with it into that part of the room where he could see him take therefrom water into the teaspoon, for the purpose of mixing it with the powder. The witness had been used first at the court ofi inquest, and, within a day or two following, at the court of preliminary examination. At these two courts he had been examined by the counsel for the State, at the first of which the respondents, if present,
The counsel for the respondents introduced his testimony given before the court of inquest, and claimed and argued that the witness had changed his testimony in a very material respect in regard to the place from which Buzzell took the white powder; “that the witness between the time of the inquest and the court of examination had purposely changed the location of the saucer from the stand in the bed-room to the cupboard in the winter kitchen, for the purpose of making his statements appear more probable.”
At the court of inquest, as shown by the minutes of his testimony taken and returned according to law, and which were given in evidence for the purpose of contradicting the witness, he had testified on this point as follows:
“Q. Any medicine given him while you were there? A. Yes. I cannot tell what it was. Q. Who gave it to him ? A. Buzzell went to a cupboard — I sat on a lounge on the side opposite the cupboard on the other side of the room in the kitchen — took a teaspoon and took some powder and gave it to him. Q. Did he give him that medicine as a dry powder? A. He mixed it with some water that was on the stand. Q. You see Marsh take it ? A. I did. Q. Could you see Marsh from where you sat ? A. Yes, sir.- * * * Q. Was there medicine in the bedroom ? A, There was medicine on the table. Q. In a saucer? A. Yes, sir. Q. Did you see how much there was in the saucer ? A. No, sir. Q. How far did he have to walk from the saucer to where Marsh was? A. Not more than two steps. Q. Are you positive you saw white powder? A. I am positive. Q. When did it first occur to you that it was an important matter? A. Well, sir, I told my folks when I got home,
At the trial witness testified that he was in the bedroom, before this occurrence, on that day, and that there was a stand there on which there was a saucer with medicine in it, and a tumbler with water in it.
In regard to this testimony and ih answer to the argument of the respondents’ counsel that the witness had purposely changed the location of the saucer from the stand in the bedroom to the cupboard in the winter kitchen, between the times he was examined at the inquest and at the preliminary examination, Mr. Plumley was allowed, against the exception of respondents, to call “the attention of the jury to their knowledge of courts of inquest, to the informal manner in which they are conducted, not as courts of trial, but to elicit facts upon which criminal action might follow, to the fact, well known by the jury, that at courts of inquest the evidence was elicited in an informal manner and by attorney or attorneys and magistrate, and that it was not an orderly formal eliciting of facts which witnesses were known by counsel to possess, but an investigation to find out what the witnesses knew, in any way, or in any part, concerning the cause and manner of the death of the person upon whose body inquest was being held.”
The witness’s examination in the court of inquest was properly before the jury for consideration. This gave Mr. Plumley the right to discuss it and to call their attention to such considerations as properly surrounded and inhered in it. It is not contended that Mr. Plumley misstated the purpose, scope, or characteristics of the proceedings of a court of inquest. The contention is that his remarks on these subjects were without evidence, and were the injection of these facts into the case and a pressing of them upon the jury for consideration. If this contention is true, the allow
It is therefore considered that judgment ought to be rendered upon the verdict, and it is rendered thereon. Let sentence be imposed, and execution thereof done.