State v. Smalley, 50 Vt. 736

State v. Smalley

50 Vt. 736 | Vt. | 1878

The opinion of the court was delivered by

/Royce, J.

The indictment found by the grand jury against the respondent contained five counts. The first charged him with setting fire to and burning the barn of Luther 1S1. Tilson; the second, with setting fire to and burning the barn of James Marsh; the third; with setting fire to and burning two barns of Loren Marsh, and that by setting fire to and burning said barns, the dwelling-house of said Marsh was burned; the fourth, with setting fire .to and burning his own dwelling-house and barn, with intent to defraud the insurance company by which said buildings were insured; and the fifth, with setting fire to and burning the dwelling-house of George D. Smalley, and a barn of the said Smalley’s, being an outbuilding contiguous to his said dwelling-house.

To this indictment the respondent demurred specially. The *748first cause assigned is, that more felonies than one, and for different and distinct transactions, are attempted to be charged. In many of the text-books on criminal law, it is said that in cases of felony, no more than one distinct offence or criminal transaction at one time should be charged in an indictment, lest it should confound the prisoner in his defence, or prejudice him in his challenge to the jury; and the case of Young v. The King, 3 T. R. 98, decided by the court of King’s Bench in 1789, is relied upon as the principal authority for the rule. The plaintiffs in error in that case were indicted under 30 Geo. 2, c. 24, for a misdemeanor in obtaining money under false pretences, and after conviction and sentence, removed the indictment by writ of error, and under the general assignment of errors, counsel, under their’ fourth objection, insisted that the second count in the indictment stated a distinct offence not arising out of nor connected with the charge in the first count. Lord Kenton, C. J., and Ashhurst, Buller, and Grove, JJ., delivered opinions. Lord Kenton said: “The objection would be well founded if the legal judgment on each count was different; but in this case the judgment on all the counts is precisely the same. A misdemeanor is charged in each; most probably the charges were meant to meet the same facts; but if it were not so, I .think they may be joined in the same indictment.” Ashhurst, J., said that there was no foundation for the objection. “Perhaps each count related to the same fraud; but if it were not so, I do not know any rule of law which prevents the joinder of two misdemeanors in the same indictment.” Buller, J., that in misdemeanors it is no objection to an indictment that it contains several charges ; that if it appeared before the defendant has pleaded or the jury is charged, that he is to be tried for separate offences, it has been the practice of the judges to quash the indictment; but these are only matters of prudence and discretion, and the judge may put the prosecutor to his election on which charge he will proceed. And Grove, J., that it is no objection in the case of felonies, still less is it so in misdemeanors. So there was nothing in that case that is an authority for that rule ; and it was distinctly held in 2 Hale, 173, and 2 Leach, 1103, that in point of law there is no objection to the *749insertion of several distinct felonies in the same indictment against the same offender. And in 1 B. & P., 180, that it was no ground either of demurrer or arrest of judgment. See also Rex v. Benfield & Saunders, 2 Burr. 980.

A distinction was made in England in this respect between felonies and misdemeanors; but the distinction was based upon the difference in the manner of trial and the consequences that resulted from convictions. But under the laws of this State, the mode of trial is the same in both cases, and there is no reason for observing any such distinction. Where several offences are charged in different counts in the same indictment, the general practice is the same that was adopted in this case — to compel the State, upon the application of the respondent, to elect upon which of the counts he is to be tried ; and a designation of the count or counts is a practical abandonment of the others. That reserves to a respondent all the rights he would have had if the indictment had contained only the count or counts upon which he is tried.

The respondent was charged in each of the counts with the crime of arson, and that is an answer to the second cause assigned. The third has been considered in the views expressed upon the first. The demurrer was properly overruled ; and the exceptions taken to the ruling and order of the court after the demurrer was overruled are not insisted upon.

. The respondent then moved that the State be ordered to elect upon which counts they would rely for a conviction. The court ordered such an election to be made, and the State elected to rely upon the fourth and fifth counts. No objection seems to have been made to the selection made, and a verdict of guilty was returned under the fourth count. Upon the trial the State offered evidence tending to show that the buildings of Loren Marsh, James Marsh, and Luther N. Tilson, situate from 60 to 100 rods from the buildings described in the fourth and fifth counts, were burned on the. same day that the buildings described in the fourth and fifth counts were burned, and that the respondent had, previous to the burning of said buildings, made threats against the said Tilson and Loren Marsh, and other persons of that vicinity whose buildings were not burned, and circumstances in relation to the burning of *750some of the buildings which were burned, tending to connect the .respondent with the burning of such buildings. Evidence of that character was received subject to the objection and exception of the respondent.

It will be seen by reference to the testimony which is made a part of the exceptions, that the threats which were permitted to be shown, were quite general in their character, but were none of them directed against the insurance company or George D. Smalley. They were threats of personal violence — that he would have revenge against the parties who had testified in a certain suit, and others of a similar nature. In criminal trials, it is the duty of courts to prevent evidence being given which would support a charge against the respondent of which he was not.previously apprised, under the pretext of its affording some presumption as to the offence which is the subject of the indictment. Evidence is not admissible on the part of the prosecution to show the bad character of the party accused, unless he has called witnesses in support of his character. Neither is it admissible to prove a felony which had no connection with or reference to the one that a respondent is being prosecuted for having committed. 1 Phil. Ev. 644, and note; State v. Lapage, 57 N. H. 245. But where the character of the particular crime charged against the respondent is to be ascertained from other acts done by him, all of them constituting one entire transaction, it is permissible to prove them all..

The. threats proven were not admissible under that rule, because they had no connection with or reference to the burning of the property for which he was being tried. They were not admissible to prove malice, for the reason that’they were not made against the parties whose property he was charged with burning. In short, there seems to have been no use that could have been made of the evidence, as having a legal tendency to show that the respondent was guilty of the crime with which he was charged. The question of the admissibility as evidence, of threats of a similar character, was before the court at the last term in Wind-ham County, and it was'held that they were not admissible. In State v. Lapage, 57 N. H. 245, the question as to how far and *751under what circumstances evidence of previous acts and character is admissible in criminal trials, is fully and ably discussed, and the court held that the prosecution cannot show a tendency or disposition in the prisoner to commit the crime with which he is charged, and cannot give in evidence other criminal acts of the prisoner, unless they are so .connected by circumstances with the particular crime in issue as that the proof of them, with their circumstances, has some bearing upon the issue on trial. See, also, 1 Whart. Crim. Law, s. 637; Regina v. Oddy, 4 Eng. Law & Eq. 572; Schaffner v. Commonwealth, 72 Pa. St. 60; State v. Renton, 15 N. H. 174.

We think the evidence that was admitted as tending to show that -the respondent had an interest, legal or equitable, in the buildings "described in the fourth count, was admissible for that purpose, and there was no error in the admission of that portion of the evidence of Samuel Wells which was objected to. But for the error committed in the admission in evidence of the threats made by the respondent, the exceptions are sustained, verdict set aside, and a new trial granted.