State v. Wiggin

Gilchrist, J.

The first question for consideration here is, whether or not there was evidence of a copartnership between the defendants, for the indictment alleges a joint sale to have been made by them as co-partners in trade; and the sale, if such there was, having been made by a servant, it becomes very material to ascertain whether the act is to be imputed to both or to one only of the defendants. If there was no co-partnership, there is no evidence in the case by which both of the defendants can be implicated in the act of the servant.

The force of evidence, bearing upon a question like this, will often depend in a great degree upon the source from which it proceeds. If the fact required to be proved be one within the peculiar knowledge of the party upon whom the burden of proof falls, and the party of course who may be supposed to be in possession of the means of placing the fact in a clear light, a greater certainty and completeness of evidence is demanded; while the party who is a stranger to the transactions, and who seeks to make proof of them against him who knows the whole truth, and can ordinarily show at once what the truth is, is favored in law with certain presumptions in aid of the inconclusive evidence which is often all he can adduce upon a subject that the privies to it are disposed to conceal.

It has been held, for instance, in criminal cases in which it is necessary to allege not only the act, but that the party performing it is not within any exception, or does not possess any qualification which would render the act innocent, it is not necessary in proof to negative the exception or qualification, because if the defendant, who knows the truth, does not offer to prove it, the presumption arises that the fact which would establish his innocence does not exist. We have had occasion to act upon that well recognized law of presumption in cases of prosecution for violations of the license law. State v. Simons, Hillsborough, July term, 1845.

The same presumption is allowed in favor of a party who seeks to prove the relation of partnership between strangers, so far as to dispense with that strong evidence of the fact that would be required if the partners themselves were required to make proof of it. In the latter case, the parties taking the burden of proof are conversant of the means by which the connection has been established, and therefore, it is presumed, of the means by which it can be proved; while in the former, no such knowledge commonly exists, and the party is obliged to rely upon proof of such outward demonstrations as may appear to lead to the' inference of partnership. And the law, as in analogous cases, furnishes a presumption in aid of the evidence, that the parties who know the truth would repel this inference by evidence of a decisive character, if the truth would admit.

It is, therefore, sufficient in such cases to prove that the parties have acted as partners, and that by their habit, course of dealing, conduct and declarations, they have induced those with whom they have dealt to consider them as partners. 2 Gr. Ev., sec. 483.

It is not necessary, if it were in fact possible, to indicate by general rules or categories what conduct, course of dealing, habits and declarations are sufficient to constitute prima facie evidence of partnership, by laying a reasonable foundation for a common belief in the existence of that relation. We think, however, that the facts here disclosed were all of a character that rendered them fit to be considered by a jury as evidence in such a question, and were fin the aggregate sufficient to justify them in finding the principal fact which they were produced to prove.

It appeared a partnership formerly existed between the parties. No evidence of its dissolution was offered except the declarations and acts of the parties themselves, who, if there had really been such a severing of their connection, may be supposed to possess the evidence of it in settlements mutually executed, change of books, and other tokens of independent dealing with one another. That circumstance is a proper one to consider in connection with the evidence offered by the prosecution.

It appeared from that evidence that Samuel L. Wiggin was often in the store which the two defendants had formerly occupied in co-partnership ; that he was accustomed, as before the supposed dissolution, to buy, sell and barter there ; that he examined the books and made charges in them ; that he went to Boston and made purchases, and that the sign of the old firm remained upon the building, as well as the sign of Joseph H. Wiggin, the ostensible conductor of the business. These are all such acts as would indicate an interest in the affairs of the store. If he was a servant of the other defendant, it is reasonable to suppose that the fact might have been shown; that he was a mere volunteer in these proceedings, is not a solution that common minds would readily adopt, but the parties had the benefit of such an hypothesis with the jury.

The weight to be allowed to some of these facts, in establishing the point in issue, depending upon the distinction adverted to, between the cases of the parties who know and those who do not know the truth, is, without doubt, considerable. But be it more or less, this kind of evidence is all that in ordinary circumstances can be adduced, and its influence upon the mind will vary according to the amount of it accumulated, and according to the explanatory facts proved by the parties who alone know the truth, and can give a reason for the existence of facts tending to settle the verdict against them. It is all the evidence that is commonly offered, and be it ever so little, is to the extent, without doubt, competent.

As to the instructions given by the court to the jury concerning the evidence upon which the State relied to prove a sale, it is quite plain that an offence like the one charged may be committed, as well through the agency of another as by the personal act of the party accused. This agency may be created before the act, or by the subsequent ratification of it. The effect of the ratification is the same, whether the agent had been previously forbidden to perform the act, or had done it without being so forbidden. It is impossible to sustain an exception to the instructions that were applied to this evidence.

As to the evidence of the sale itself, nothing is more common than for persons seeking to commit an offence against the law, to resort to contrivances by which their acts may be wholly concealed, or their nature and purposes disguised. The night is chosen for the commission of larceny. Pockets are picked under the pretence of some friendly purpose, justifying the necessary personal contact. A kiss may be an act of petit treason. In the case of the State v. Simons, it was held that the call for spirits, and their subsequent delivery, were competent evidence of a sale, notwithstanding the accompanying act and declarations of the parties tending to prove that they were delivered as a gift. If criminals could justly claim the right to have their words taken for truth, their acts presumed to be sincere, and to have their disguises serve the purposes of protection and concealment, for which they were designed, it is plain that many crimes would escape detection. If a customer comes into a shop, helps himself openly to what he wants within his reach, and places within reach of the salesman a satisfactory price, that is a sale to all appearance. A sale may be conducted without words as well as with, and signs among persons speaking a common language may sometimes be as useful as among those who cannot speak together.

The constitutional question has been settled in the case of the State v. Pierce, 13 N. H. 536.

The exceptions must, therefore, all be overruled.

Judgment on the verdict.

Case Details

Case Name: State v. Wiggin

Court Name: Superior Court of New Hampshire

Date Published: Jan 15, 1846

Citation: 20 N.H. 449