71 Vt. 331 | Vt. | 1899
In passing upon the questions reserved in the court below, it becomes necessary to consider when and under what circumstances an inference unfavorable to a party may be drawn from his failure to produce other witnesses. It may be stated as a general rule, that, when it appears that evidence is peculiarly within the knowledge and reach of one party and not the other, an inference unfavorable to the party having such knowledge and to whom the evidence is peculiarly available may be drawn •from his failure to produce such evidence. Applying this rule to the facts shown by the exceptions, it is clear that an inference unfavorable to the State could not be drawn from its failure to produce as a witness the owner of the building-in which the liquor was found, nor from its failure to produce as witnesses other persons who were in the building. We cannot assume that the knowledge of these persons was peculiarly the knowledge of the prosecution, nor that they were peculiarly within its reach; and, in the absence of any showing upon this subject, the ruling of the trial court, that no presumption was to be drawn against the State because it did not produce witnesses, when such witnesses were equally within the reach of both parties, is presumed to have been justified by the evidence. While it is held in some cases that it is the duty of the State in criminal trials to produce all witnesses within reach of process, whose testimony will shed light upon the transaction, its failure to do so does not justify an inference unfavorable to the
The court, after instructing the jury that they were not to draw any presumption against the respondent because he did not go upon the stand and testify, in effect said: “The testimony tends to show, that he was pretty constantly there, in the room, and that there were others with him at these times; and, if you believe that he could have shown by these witnesses, that he was not the keeper of the room, and some one else was, you have the right to consider the fact that he did not call these witnesses for the purpose oi showing who the keeper of the room actually was.” The respondent excepted to what the court said about the tendency of the evidence and calling other witnesses. The testimony is not referred to, and we cannot say that the evidence did not have the tendency stated by the court; nor can we assume that the evidence did not tend to show that the evidence referred to by the court was peculiarly within the knowledge and reach of the respondent. If such was the tendency of the evidence, the charge as given, in so far as it appears in the exceptions, was correct. The charge is not referred to, and it does not appear that the respondent excepted to the failure of the court to further instruct the jury. In order for this court to hold that there was error, we must assume, without the charge or evidence before us, that the court did not further instruct the jury as to the law applicable to the case, or that the evidence did not tend to show that the evidence referred to by the court below was peculiarly within the knowledge of the respondent. This, for the purpose of finding error, the court will not do. Brooks v. Guyer, 67 Vt. 669; Bragg v. Laraway, 65 Vt. 673; State v. Bradley, 64 Vt. 466.
In State v. Fitzgerald, 68 Vt. 125, relied upon by the
Judgment that there is no error, and that the respondent * take nothing by his exceptions.