State v. Stone

18 A. 654 | N.H. | 1889

Smart's testimony to Stone's threat disclosed nothing in violation of the rule protecting communications between attorney and client as privileged. The threat revealed a contemplated violation of law, and was not made as a part of any business or confidential interview. Patten v. Moor,29 N.H. 169; Chamberlain v. Davis, 33 N.H. 121, 131; Sleeper v. Abbott,60 N.H. 162; McLellan v. Longfellow, 32 Me. 496; (Coveney v. Tannahill, 1 Hill 33. It was not open to the respondent to object to Smart's statement, elicited on cross-examination, that "Foote knew there was trouble between Brackett and Stone." The remark was not hearsay, and was made in explanation of Smart's causing Foote to be summoned as a witness.

The exception of Stone to the refusal to give the instruction, that he could not be convicted upon evidence of his hiring and procuring Merchant to give Brackett a licking, cannot be. sustained. The instruction, if given, would have been misleading, and might have been understood by the jury as calling for a limitation of the evidence against Stone to the particular fact recited, and as pronouncing Stone's innocence from that fact, as a conclusion of law, instead of a submission to the jury of the question, upon all the evidence upon the subject, as one of fact. There was no error of law in refusing the request.

The instruction given — that if Merchant committed the assault, and Stone hired and procured him to commit an assault upon Brackett, it was no excuse for Stone that Merchant committed an assault of a more aggravated nature than Stone intended — was a general statement of the proposition that Stone must be presumed to have intended the probable consequences of his act, and must have been so understood by the jury. If Stone's offence was hiring Merchant to give Brackett so severe a beating that death would be a probable result, he was guilty of the crime charged. The probable consequence of the solicited act is a question of fact, and there was no request that this question of fact be specifically submitted to the jury. Although it was not in terms submitted, neither was it withdrawn from the consideration of the jury; and if the respondent desired more specific instructions upon the subject of probable consequence, as a question of fact, and did not make the request, he cannot now complain, and there is no cause for a new trial.

The exception to the denial of the respondents' motion for a new trial upon grounds of accident, mistake, and misfortune, and because justice has not been done, presents no question of law; and, ordinarily, a question of fact of this kind will not be decided at the law term, nor the decision of it at the trial term be revised here. Brooks v. Howard, 58 N.H. 91; Buzzell v. State, 59 N.H. 61.

Exceptions overruled.

SMITH, J., did not sit: the others concurred.