86 Vt. 449 | Vt. | 1913
This is a prosecution of the respondent for adultery with a Mrs. Maynard. The respondent was convicted and brings exceptions.
In the examination of a material witness for the State a leading question was put by the state’s attorney upon a material point. The respondent interposed an objection on the ground that the question was leading, but the court -allowed an -answer. It was within the discretion of the court to do this and the contrary not appearing it is to be presumed that the court allowed the answer as matter of discretion, and that there was no abuse of discretion. Berry v. Doolittle, 82 Vt. 471, 74 Atl. 97.
The respondent claimed that at the time of the alleged adultery he and Mrs. Maynard, who were cousins, were not where the State claimed them to be, and in support of this alibi called certain witnesses and offered to show by them where the respondent and Mrs. Maynard were, and that they were engaged in a controversy and “fracas” with -a witness'for the State who had testified to seeing them elsewhere at that time in the act of adultery. The court ruled that the respondent might show where he and Mrs. Maynard were at the time in question but not what they were doing, and excluded questions -in that regard. To this action of the court the respondent excepted. The
Much the same matter was offered to be shown in the cross-examination of a State’s witness who had testified that he was an eye-witness of the crime charged, but it is not clear that the time inquired about was the time in question, and though an offer was made it is not clear that the question was in line with the offer in respect to time. The court excluded the offered evidence on the ground that it was not matter of cross-examination, and thq respondent excepted. Adequate cross-examination is the prime test of truth, but, as this matter is presented in the exceptions, we cannot say that the court was in error.
During the cross-examination of one of the State’s witnesses he was asked if he didn’t have some trouble with Mrs. Maynard the year before because she went in bathing near his cottage and if he didn’t have some words about it with her. He said he did not with her but with another woman whom he was asked by the respondent’s counsel to name.- He named the other woman and stated her objectionable conduct and that of another man not the respondent and said: ‘ ‘ How would you like that 1 ’ ’ An exception was taken to the part of the answer that was not responsive on the ground that it was not so, and that it was given for the purpose of injuring this respondent. The witness was in the hands of respondent’s counsel and certainly neither the court nor the state’s attorney is shown to have been in fault.
Two witnesses for the State testified to the bad reputation of Mrs. Maynard for chastity. It did not appear that the respondent knew that she had such a reputation, and the evidence was objected to on that ground.
If she was an unchaste woman that fact could be shown although knowledge of it was not brought home to the respondent.
The character of a respondent cannot be given in evidence unless he himself offers his good character in his defence, when the door is open for the State to introduce evidence of a like character and this rule is applicable to cases like this, State v. Plant, 67 Vt. 454, 32 Atl. 237, 48 Am. St. Rep. 821. This rule does not go upon the ground that evidence of a particular criminal trait is not logically relevant, for if it were not' there would be no reason in allowing a respondent to show his good character in respect to the matter charged. But unless the respondent goes into the matter the State cannot be permitted to do so lest, among other reasons, the respondent be convicted without much reference to the question of whether it is shown that he committed the very offence with which he is charged. But where the character of some one not on trial is logically relevant to the issue this rule loses its force or rather does not apply and the evidence may be received unless some other rule calls for its exclusion. This whole matter is well discussed by Wigmore, more particularly in sections 55, 56, 57, 58, and 68, of his work.
When a man has associated, or consorted, with a woman under circumstances calculated to suggest criminal conduct the bad character of the woman, if it exists, is a subordinate fact which may be shown in connection with other evidence as a circumstance bearing upon the probability of the criminal conduct charged; and when character becomes relevant, reputation tends to show it and may be given in evidence. So in Commonwealth v. Grey, 129 Mass. 474, 37 Am. Rep. 378, it was directly held that upon the trial of a man for adultery the reputation for chastity of the woman with whom the offence is charged to have been committed may be given in evidence, and in Blackman v. State, 36 Ala. 295, the same rule of evidence was asserted and applied. The reputation for unchastity of the particeps was held admissible as corroborative evidence.
The case at bar and State v. Nieburg, 86 Vt. 392, 85 Atl. 769, were under consideration at the same time, and were independently discussed, and that case is full authority on the point now under consideration. State v. Cushing, 86 Vt. 416, 85 Atl., is also authority for the position here taken.
There was evidence as to what took place after the alleged adultery. The court charged the jury that this evidence bore only upon the weight to be given to the testimony of the State’s witnesses. To this restriction the respondent excepted, and his counsel say in their brief no more than that the court improperly restricted the use to be made of the testimony in question. The brief gives no reasons for this claim and we have sought for none.
Sentence set aside, judgment reversed and cause remanded.