State v. Young

67 Vt. 450 | Vt. | 1894

TYLER, J.

The testimony of the witness Bixby was, that on the evening of the alleged larceny a man rode with him in a baggage car; that at a certain .point on the route the man asked him if the next station was not Sunderland; that he replied that it was Arlington, and that the man soon afterwards disappeared. This evidence only tended to show that the man was looking for the Sunderland station, near which the larceny was committed. It had no tendency to identify him as the thief.

Bixby further testified — and this was the subjéct of exception — that a few days later he saw the same person in a seat in front of him on a train going from Bennington to Rutland, and asked him if he did not come up with him “the other day” ; and that the man replied in substance that if he did he behaved himself, and that he always intended to treat people well.

It is true that the whole testimony of Bixby, considered by itself, was immaterial, but the testimony of Yearly was that he was the officer who took the respondent in the train from Bennington to Rutland after the arrest; that the person with whom Bixby had the above conversation was the respondent, and that the conversation was had while he, Yearly, -was sitting beside the respondent in the car on the route to Rutland. The testimony of Bixby, considered in connection with that of Yearly, tended to show that he saw the respondent on the night of the larceny near the place where it was committed. The evidence was not subject to the objection that it was a presumption based on another presumption; on the contrary, one witness testified to the fact of seeing a certain person on two occasions; the other witness testified that he saw the person on the second occasion, and identified him as the respondent.

There was no error in the remark of the court in the charge “that it was somewhat significant that the respondent could have learned so much and also advised Dantse what to do in so short a time.” *' * * The remark did not amount to the expression of an opinion, and the question whether the respondent learned the alleged facts from Dantse and advised him, or whether the respondent was there with the team was expressly submitted to the jury. Pettingill v. Elkins, 50 Vt. 431 ; Rowell v. Fuller, 59 Vt. 688.

Judgment that there was no error in the proceedings, and that the respondent takes nothing by his exceptions.