80 Vt. 422 | Vt. | 1908
This is an information for the statutory crime of employing means with intent to procure the miscarriage of a pregnant woman, the same not being necessary to preserve her'life, and who died in consequence thereof. The prisoner lived in Bellows Palls; the woman, in Proctorsville. The State claimed, and its evidence tended to show, that the deceased arranged with the prisoner by mail for the operation; that he sent her two letters concerning the matter, one of which she received the evening before she went to Bellows Palls to meet him; and that the next morning she burned two letters, one of which was signed “Doc,” and both of which the State claimed were written by the prisoner. The witness who proved the destruction of the letters testified that when the deceased destroyed them she said she was going to burn them because her sister might get hold of them. The prisoner now objects that this is hearsay, and nothing more. But we think that the declaration was admissible as a part of the act of destroying the letters, pars rei gestee-, proof of their destruction being competent for the purpose of laying the foundation for secondary evidence of their contents. The declaration accompanied the act, was calculated to explain and elucidate it, and was so connected with it as to be a part of it, and to derive some degree of credit from it. In such cases the credit that the act gives to the accompanying declaration as a part of the transaction, and the tendency of the declaration to explain the act, distinguish this class of declarations from mere hearsay. Such declarations derive credit and importance as forming a part of the transaction itself, and are included in the accompanying circumstances, which may, as a rule, be given in evidence with the principal fact. But there must be a principal fact or transaction, and only such declarations are admissible as grow out of it, illustrate its character, are contemporaneous with it, and derive some degree of credit from it. Lund v. Inhabitants of Tyngsborough, 9 Cush. 36; Waldele v. New York Central R. R. Co., 95 N. Y. 274; New Jersey Steamboat Co. v. Brookett, 121 U. S. 637; Steph. Dig. Ev., Chase’s ed., 8, n. 3; Thayer’s Prel. Treat. Ev. 521, 523.
The State offered secondary evidence of the contents of the letter signed “Doe.” The prisoner objected that there was nothing to connect him with the letter. The objection was overruled, and the testimony admitted, which showed that the letter read: “Come to Bellows Falls Tuesday next on the noon train, and I will meet you at the depot. I will remove that tumor for yoii, and you will be able to go home on the evening train. Be sure and bring thirty-five dollars with, you.”
The prisoner claimed, and his testimony tended to show, that he was unacquainted with the deceased, and never saw her till the day on which, by arrangement made by mail, she was to ■come to his office to have an examination to ascertain what was the matter with her; that she suggested a tumor; that all he did was to make a partial examination, during which she died; that he made no attempt to procure an abortion, and did nothing to cause her death; that he wrote and mailed to her two letters, •one, the day before she came to his office, and one, some days before; that he signed the first with his own name, “Mr. Ryder, M. D.,” and added a postscript, which he signed “Doc.” As to the contents of the second letter, he said nothing.
The State’s evidence tended to show that pursuant to her arrangement with the prisoner, the deceased went to Bellows
The prisoner claims that there was no legal evidence that he had anything to do with the letter signed “Doc,” and that therefore it was error to admit secondary evidence of its contents. The State claims that the circumstances shown, taken in connection with the prisoner’s own testimony, were sufficient to warrant the jury in finding that he wrote the letter; and with this we quite agree.
Proving things by circumstantial evidence is a process of imperfect induction, by which, from the known we infer and find the unknown. But circumstantial evidentiary facts are too various to admit of enumeration, for they are as changeful a» the events out of which they grow. They cannot be comprehended within any rule, nor brought under any classification. Great latitude is allowed in their reception, and everything that tends to connect the supposed evidentiary fact with the factum probandum, is admissible to prove that fact. Will’s Circumst. Ev. 36, 37; Holmes v. Goldsmith, 147 U. S. 150, 164. Viewed in this light, there is little doubt about the sufficiency of the evidence to connect the prisoner with the letter.
The prisoner introduced two letters addressed to him, which his evidence tended to show were written by the deceased. The State denied that she wrote them, and claimed that the prisoner fabricated them. To sustain this, the State produced several letters, and introduced the testimony of witnesses who said they had seen the deceased write, knew her handwriting, and that the letters produced were in her handwriting. Thereupon the State offered them in evidence as standards of comparison by which
About a page of the printed exceptions is a recital from the charge that deals with whether the letters introduced by the prisoner were genuine or fabricated, and with what facts, if proved, would tend to show them genuine. The court then charged upon the prisoner the burden of showing their genuineness by a fair balance of the evidence. The prisoner excepted to all of the charge contained in the recital, without specifying any part of it. He now objects to none of it as erroneous except the part that placed the burden of proof upon him. And clearly none of the rest of it was erroneous; and whether the part now objected to was erroneous we do not consider, for to sustain such an exception, all of the charge recited must be faulty. This, as is said in Cutler & Martin v. Sheets, 69 Vt. 154, 161, has been so often decided that it is needless to cite authorities in support of it.
Judgment that there is no error in the proceedings of the County Court, and that the prisoner't'ahe nothing by his exceptions. Let sentence be imposed, and execution thereof done.