State v. Roe, 12 Vt. 93

State v. Roe

12 Vt. 93 | Vt. | 1840

*109The opinion of the court was delivered by

Collamer, J.

— The right of the government attorney to enter a nolle prosequi is suspended when trial commences to the jury. After that, the power is to be exercised only by permission of the court. The court, in granting permission, will exercise its judicial discretion. If the case appear a clear one for the respondent, the court will not give the permission, as he is entitled to a verdict of .acquittal. If the case appear against the accused, he can have no objection to a nolle prosequi. In this case there can be no doubt of the identity of the subject matter of the’two counts, and a general verdict should have been entered, but, through some inadvertence, a verdict was entered only on the first count. All the counts, in an indictment, should, in some way, be legally disposed of, and therefore the attorney has leave to enter a nolle prosequi on the second count.

[A nolle prosequi was entered on the second count.]

I. Evidence had been given that just before the church was discovered to be on fire, its bell rung several strokes. The respondent offered evidence tending to show that this might have been accidental, which was rejected. It is error to reject testimony material; but the case must show that it was material. We cannot indulge in fanciful conjectures as to the materiality of the bell having rung. It seems to have been shown without objection. It might have been mentioned to refer to as to time, in the order of events, and to show the consistency or inconsistency of witnesses, or of the respondent’s account, but we are unable to discover, and the case does not show, how it was material, whether that ringing was by accident or not.

II. The indictment charged that the church, or meetinghouse, belonged to “ the first Calvanistic congregational society in Burlington.” The proof of this allegation consisted in the paper presented and parol proof, that, from 1810, the society has been known by the name of the first Calvanistic congregational society in the town of Burlington, and that they built, and have ever occupied the house. Was this sufficient ? The existence of a society or corporation, defacto, is sufficient, and that is always shown by parol. Even had it been shown that, in point of fact, the society never were organized and never were a corporation, it was of no impor*110tance. The burning of the meeting house would be arson, ° ° within our statute, though it did not belong to a corporation. But; it is said, there is a variance in the name. They take no name in the writing. They might have many names, by reputation, and they are not, in the indictment, attempted to be described by name, but by general character or tenet; and the words, as to location, in the town of Burlington and in Burlington, are, in substance, the same. This whole allegation and its materiality, will come again under consideration on the motion in arrest.

III. Scott testified, on the trial, to material matter which he suppressed at the court of inquiry, through fear, as he said. Was it error in the court to leave his testimony with the jury ? Was the court bound to instruct the jury to lay his testimony out of consideration ?

Matter which goes to the competency of a witness, excludes his testimony from tho jury. This is confined to interest in the event of the suit, or legal infamy, which can only exist or be shown by conviction of crimen falsi. All matter going to the credit of a witness must, from its very nature, go to the jury together with the testimony of the witness. If the witness, on his cross-examination, disclose improprieties in himself or his testimony, and attempt excuses therefor, most clearly, the jury must judge of the improprieties and the truth and force of the excuses. Hence, it must be left to them. Such was this case and such the course taken by the court. Some judges will leave such testimony to the jury, attended with more severe remarks than others; but that is matter of judicial discretion, the extent or neglect of which cannot be assigned for error. This is fully sustained by King v. Teal et al, 11 East. R. 307. Much stress is laid on the case of Dunlap v. Paterson. 5 Cowen’s R. 243. But there the court did not decide that the testimony should be taken from the jury, nor that the jury should leave it out of consideration. The court below had told the jury it was competent, and théy might regard it as they thought it deserved. The court above said they should have charged,that the jury “would have been justified in disregarding it.” Now, clearly, this, after all, was but telling the jury,they were to judge* in relation to it, and that, too, when no excuse for *111the witness was offered. Still more proper was it to leave it to the jury when an excuse was attempted.

IV. After the cross-examination had so elicited facts, which tended to discredit the witness, was testimony admissible to sustain his general character ? This was fully decided in this court, in this county, in 1836, in the case of Fuller v. Sanford, not reported.

V. Much is said about the court neglecting to instruct the jury about the rules of weighing circumstantial or presumptive evidence. It is said the jury should have been told they could not build one presumption upon another, &c. But the case is entirely destitute of any statement of evidence which called for any such instruction. There are, in elementary writers, ingenious but extremely fanciful dissertations on this species of proof. As the human mind, in search of truth, is extremely anxious to reduce moral truths to mathematical certainty, some of the writers have attempted to resolve presumptive evidence into arithmetical proportions and algebraic equations. But all this is merely fanciful, and no adjudged case has settled any such rules'. There are some things which the law requires to be positively shown ; such as the corpus delicti. But the only degree of certainty' known to the law and recognized in decisons, is this ; conviction beyond a reasonable doubt. This may be derived from circumstances, the admissibility of which is matter of law, but the weight of which it matter of fact for the jury. Some rules for weighing evidence are laid down in the books, and the judge may, and perhaps ought, in cases proper in his es-estimation, to aid the jury in their investigation, by instructing them in those practical rules. But this rests in his own discretion, depending on his views of the nature of the case and occasion. But no adjudged case can be found where it has been held as error, that the court did not instruct the jury in the most approved elementary rules on the best and safest mode of weighing circumstantial evidence, which the case would have justified or perhaps called for. There probably never was a case of circumstantial evidence tried where the judge gave the jury all the instructions the law would have sustained, but, unless he gave them wrong instructions, it was no error. The want of full instruction may, in some *112courts, have been considered ground for new trial, but never, as is now insisted, was it assigned for error.

VI. As to Spear’s testimony, there is no exception that it was admitted. In admitting it,the court correctly decided that the threats of another, in the presence of the prisoner, should not prejudice him unless he participated. After it was admitted, the case shows no further request to the court in relation thereto. It is not always easy to put on paper all the evidence of participation, approbation or assent, as it is not always in words. After that testimony was in, it is obvious the counsel made it a point to the jury whether there was any such participation, and it was so left to the jury, and the court was not requested to dispose of it otherwise. The court, therefore, left it to the jury with a repetition of its decision. In this there was no error. The utmost which can be said of it, is, that it was another instance of not doing all which the law would have sustained, but doing nothing illegal.

VII. This brings us to the consideration of the motion in arrest, for the insufficiency of of the indictment. The objection made, is, that it is alleged that the meeting house belonged to the society, instead of being alleged that it was the meeting house of the society.

At common law, arson is the burning of the dwelling house, mansion, or outhouse of another; and therefore, from the very definition of the crime, it was necessary to allege and prove whose it was. It was always to be alleged as the house of the possessor, occupant or inhabitant ; property therein being unimportant. Such is our statute as to private property. But,by our statute, the burning of a meeting house, court house, school house, &c., is arson, though they are not capable of habitancy. How could one be indicted for burning a college ? It is not the habitancy of the corporation. Is it that of the students ? Must they all be inserted by name? So of a school house. The result must be, that, as to public buildings, they do not fall within the principle, and cannot follow the rule or form as to private buildings. Statute 9, Geo. I., makes it capital to burn any house, bam or out house, or any stack of com, hay, &c., in the night time. On that statute the indictments are drawn by alleging the stack of hay as “ belonging to A.,” as in the present case. For burning a public prison, called the Hole, on 9 Geo. I., in the first *113count of the indictment, it is said to be “ the prison of the borough of K.” And this, Mr. Chitty'considers a description of the thing and no averment of ownership or occupancy; and in the second count he entirely omits it. 3. Chitty’s Grim. L. 557. It was unnecessary, therefore, as to such public building, to allege that it was of, or belonged to, any one, and all that allegation was surplusage in the indictment; but if any thing of that kind was wanted, belonging to was sufficient.

Exceptions overruled and sentence passed.