State v. Stebbins

| Conn. | Feb 15, 1861

Ellsworth, J.

The first ground upon which a new trial is claimed, is that after the jury were impanneled and sworn and the trial commenced, the information was amended by erasing the word Norwalk in the description of the railroad company in the third count, and inserting in its place the word New Haven.

We are not satisfied that this alteration was of any importanee in itself. The former word was used only as a part of the description of the place where the offense was committed, and as the place was more fully described as being between Westport and Norwalk, we think it was sufficiently described notwithstanding the error in this incidental part of the description. The substitution of the word New Haven for Norwalk in the mere description of the railroad upon which Westport and Norwalk were situated, was therefore of very little importance, and could not prejudice the defendants.

Besides, there were other counts quite sufficient to proceed with the trial upon, which have not been altered, and had the prisoners’ counsel wished to test the sufficiency of those counts, they could have called for a verdict on them specifically. It is of no importance now, for one good count is sufficient, according to the English and our own law, upon a general verdict; and in this state the law is the same in civil and criminal trials, though it is otherwise in England.

The great objection which has been pressed upon us for a new trial is, however, that no amendment of the information whatever could be allowed after the trial had begun, because, in criminal cases, after the trial has once commenced, the prisoner has a right to insist upon a verdict from the jury, so that he may not be put in jeopardy a second time.' The law is undoubtedly so, as a general rule ; and so it was adjudged in the case of United States v. Porter, in the circuit court of the United States at Hartford, reported in 3 Day, 283" court="None" date_filed="1808-07-01" href="https://app.midpage.ai/document/united-states-v-porter-8639343?utm_source=webapp" opinion_id="8639343">3 Day, 283; but the rule is of no importance in a case situated as this is. A verdict of acquittal on this third count, even if it was the only one in the information, and contained a material variance in its statement of the crime intended to be prosecuted, would do the prisoner no good ; for a new information could be filed immediately, avoiding the variance. It would be otherwise if the description was correct, and the prosecution was likely to fail because of the want of proof to sustain it. Then, of course, the prisoner could object to a nolle prosequi; for if he could not, the attorney for the state could file a new information, and put the prisoner in jeopardy for the same offense as often as he pleased. In any case the court may, in the exercise of its discretion, grant delay or a continuance of the cause. But when the prisoner has been put on trial for the real offense, and no good reason for delay or continuance appears, the prisoner is entitled to have the trial go on; for a verdict in his favor will be a bar to a future prosecution against him on the same matter. Practically, the objection of variance will avail the prisoner so little, that it is customary in our courts generally for the prosecutor to amend and go on with ’ the trial without a re-examination of the witnesses, unless such re-examination is claimed by the prisoner, which was not the case here. *

It is further objected that the testimony of Charles H. Ward, teller of the Atlantic Bank at Boston, should not have been received, on the ground that it was irrelevant, and because the witness did not identify the prisoner as the person who exchanged the bills at the bank.

These objections do not appear to us to have any great weight. The evidence conduced to establish certain facts claimed to be material, and was claimed to be corroborative of the testimony of Kinney the accomplice, who had testified that Roberts and Stebbins were active with himself in planning and executing the felony for which they were on trial, and in appropriating the booty taken, including certain bills of the Alfred Bank — that he and Roberts went to Boston in September, where they met Stebbins at his house, (describing its appearance within,) and had a conversation on the subject, and that Roberts while there went to the Atlantic Bank and got four fifty dollar bills of the Alfred Bank changed for $200 in small bills — and that they then proceeded,- with the $200 thus obtained and with nine of the ten $500 of the Atlantic Bank stolen, to Alfred, in the state of Maine, where the witness got them changed — not only the nine large bills, but the smaller ones also, which the prosecutor claimed were the avails in part of the other $500 note, not found after the theft was committed in their hands. All this testimony was deemed material to show the participation of Roberts in the crime committed, and if Kinney could testify to the facts, as he did without objection, they could of course be testified to by Ward, so far as any part of them came within his knowledge. The exchange of the four $50 bills for $200 in smaller ones was a part of this testimony, and we think it is not to be rejected as wholly irrelevant. The evidence went to prove the complicity of Roberts in the felony, and particularly that he had in his hands the nine large bills which had been stolen, and the $200 in smaller ones, which he handed to Kinney at Alfred, as the joint property of the three, and which $200 had been before obtained from the Atlantic Bank by some person. Ward testified that in September, (as Kinney had said,) a man came to his bank with four $50 bills and exchanged them for $200 in small bills, but he could not say that it was Roberts, whom he did not know; but Kinney swore that it was Roberts, for he accompanied him to the door of the bankfor the purpose testified to by Ward. Taking the testimony together, it is unobjectionable in our view as testimony in chief, to prove the guilt of Roberts.

But the chief purpose of the evidence of Ward was, we suppose, to corroborate Kinney ; the rule of law being, that an accomplice, to be entitled to full credit, ought, as far as possible, to be corroborated by further proof. Not that this is an unbending technical rule, or that an accomplice may not be credited in what he says without such further proof, for we entertain no doubt that without it a jury may be satisfied of the guilt of a prisoner, and that they may convict where they have not a reasonable doubt of his guilt, as this court held in the case of The State v. Wolcott, 21 Conn., 272" court="Conn." date_filed="1851-07-15" href="https://app.midpage.ai/document/state-v-wolcott-6576477?utm_source=webapp" opinion_id="6576477">21 Conn., 272; but the whole extent of the rule is this, that such testimony is of a suspicious character, and calls for scrutiny on the part of the jury, and for a particular caution to the jury on the part of the judge in his charge. The evidence, if standing alone, is not to be rejected, and whether corroborated or not, (and to what degree it needs corroboration the jury must judge,) may be sufficient to satisfy the minds of the jury. So important however is it that the jury should be cautioned as to the weight of the evidence by the court, that to omit it is now held a clear omission of judicial duty, and becomes a ground, perhaps, for granting a new trial. Roscoe Crim. Ev., 144. 1 Greenl. Ev., § 380. Commonwealth v. Bosworth, 22 Pick., 397. What the judge said to the jury in this case we do not know, but we may assume that he did his duty, as there is no complaint on this ground in the motion.

We do not understand that the English cases, (which are rulings on the circuit,) so earnestly pressed upon our consideration by the counsel for the defendants, contain any different doctrine from that which we have laid down. By reference to Taylor’s late treatise on evidence, we shall find that the practice in England at the present time agrees with what we have stated to be our own. Indeed Taylor makes^ use of the very language of Mr. Greenleaf on this point. “ There is no such rule of law, it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice without any confirmation of his statement.” 1 Greenl. Ev., § 380. The cases, as we regard them, go only to the duty of the court in submitting such evidence to the jury, though some of the judges state what rule they, if acting as jurors, should think it proper to adopt.

The mere inability of Ward, the witness, to identify the prisoner with the man he dealt with at the counter of his bank, which was the precise objection taken to it by the defendants’ Counsel, was no ground for excluding his evidence entirely from the jury. Kinney supplied this lack of evidence, and he is an unobjectional witness, though his credit was impaired by his avowed participation in the crime committed.

The same may be said of the testimony of Sanford and Bosworth. Their testimony was admissible, both as testimony in chief and as confirmatory of what Kinney had testified, and was rightly admitted. Nor do we see any error in the court’s ordering the box to be delivered to the jury.

We do not advise a new trial.

In this opinion the other judges concurred.

New trial not advised.