State v. Magoon

Practice in the Order of the Admission of Testimony in Criminal Cases. Relation of the Slate to its Witnesses. In the trial of both civil and criminal cases, the order in which testimony shall be admitted is discretionary with the court rather than matter of strict right; and error is not predicable on the exercise of that discretion, unless it is manifest that the excepting party has been thereby surprised or in some way put to legal disadvantage. Although in the trial of criminal cases in this State the prosecution has generally been required to put in its whole case in the opening, and been confined in the close fco testimony in rebuttal, — yet, that practice has never gone to the extent of rejecting in the close testimony tending to weaken the evidence on the part of the respondent because also tending to strengthen the testimony introduced by the prosecution in the opening. The respondent claimed that P., whom the State introduced as a witness, was really guilty of the alleged murder, and introduced evidence showing that she had made threats against the murdered man, and had had a fight with him, and that she made statements on the morning of the discovery of the homicide, contradictory to her testimony. The court charged that as it was the duty of the prosecution to show to the jury everything that might shed light on the truth, it was its duty to produce P., that the jury might hear her story ; that the jury were to give it such credit as they thought it was entitled to ; and that if they discarded it, it should neither aid nor injure the case made by the State. Held, that it was to be presumed that the jury were charged that the State must prove the respondent guilty ; and that the charge was therefore not erroneous as leading the jury to disregard P’s testimony as bearing on the question of her connection with the crime alleged.

Indictment for the murder of Rufus Streeter. Plea, not guilty, and trial by jury, September Term, 1876, Washington County, Redfield, J., presiding. It appeared that on the morning of October 15, 1875, the mangled body of the murdered man was found lying just over the fence, within a few feet of the main highway leading from Barre village to Orange, and on the land, and within a few rods of the dwelling-house, of Hannah Perrin. The prosecution claimed that he was killed by the respondent at between six and seven o’clock of the previous evening; and introduced evidence tending to show that there were marks of a struggle in the highway opposite the place where the body was found, and blood, and boot tracks apparently made by boots the heels of which were wholly or partially worn off, also marks indicating that the body had been dragged thence to the place where it was found. It appeared that the respondent was arrested near his house in Orange on the day the body was found. The State introduced evidence tending to show that the respondent was then wearing a pair of old boots the heels of which were wholly or partially worn off, and that there were blood marks on the back side of the heel of one of them. No question was made but that the respondent was at Montpelier and Barre on the day of the homicide,' nor but that he went to his house in the evening or night of the same day. The State claimed that he wore the boots that he had on when arrested to those places; but the respondent claimed that he wore rubber boots. To prove that he wore those boots, the State gave evidence of the admissions of the respondent on the occasion of his arrest, and introduced, among other witnesses to the same point, N. P. A.verill, an officer who assisted in making the arrest, who testified that the respondent changed his clothes in his own bed-room soon after his arrest; that he thought he asked the respondent, as he put on each piece of his clothing, whether they were the clothes he wore on the previous day, and that he said they were, and said when he had got them all on, that he had got on everything he wore the day before “ right through ”; that he examined his boots, and that they were old boots, the heels of which were entirely worn off; that he would not swear that he asked him particularly if the boots he put on were the ones he wore the day before, but that he thought he did. There the State rested. The respondent did not himself testify, and introduced no testimony as to the alleged admissions, nor as to what boots he had on when arrested, except that of his sons, Charles and Asa, who testified that he wore a pair of rubber boots to Montpelier and Barre. As to that point the respondent then rested. The State then offered in rebuttal, as to the respondent’s alleged admissions, the testimony of Elondas Hood, who testified that he was present when the respondent changed his clothes ; that Averill asked the respondent “ if those were the clothes and the boots he wore the day before,” and that “ he said they were.” The respondent seasonably objected to the admission of Hood’s testimony, for that the respondent had introduced no evidence as to his admissions, nor as to the boots he had on at the time of his arrest, except the testimony of said Charles and Asa, and for that the rule in criminal cases in this State does not allow evidence to be accumulated on a point made by the State in the opening, but confines the State “ to the same rebuttal that it would be confined in pleading,” and does not allow evidence in rebuttal that is allowed in civil cases. But the testimony was admitted ; to which the respondent excepted. The testimony on the part of the State being circumstantial, the respondent insisted that he was not present at the alleged murder, and was in no way connected with it; and claimed that the said Hannah, who was introduced as a witness- by the State, was in fact the guilty party ; and he introduced testimony showing that she had made threats against the murdered man, and on one occasion had had an altercation and fight with him, and that she made statements on the morning of the discovery of the homicide, contradictory to those of her testimony. But the court charged in reference thereto as follows : In bi’inging evidence of a crime before a court and jury, it is the duty of tíre government attorney to bring everything that he thinks may shed true light upon the subject. And while in a civil case if a party responsible bi’ings false testimony, it should and does pi’ejudice the court and jury against the whole character of his claim, yet in a case of this kind, which is a grave crime, and one that invites your utmost scrutiny to maintain on the ope side all the rights and safety of the public, and on the other side to guard well all the rights of the accused, it is the duty of the state’s attorney — and so far as this case discloses it has been followed out — to show to the jury all that may shed light on the transaction, leaving it for them to weigh it and decide how far it is credible — how far it does tend to shed light on the truth. Comments have been made upon -Mrs. Perrin. It was perfectly proper— would have been on either side. It was the duty of the government to produce her here before the jury, that you might hear her story, and give just such credit to it as in your experience you think it is entitled to ; and if you discard it wholly, it neither aids nor injures the case made by the State. If it discloses, so far as the facts come out, that this witness may have had a connection with the murder, that is to be weighed. She is not on trial; and while you are to weigh all declarations that she has made in connection with her acts in qualifying those acts, yet a naked declaration only goes to impair and impeach her testimony. In this case she made declarations inconsistent and contradictory. Well, they may be so many and so repeated that you put no credence at all in her as a witness, or you may say that, being arrested and excited, the murder being upon her own land, and farm, that she might have been so excited, with every one inquiring of her, that she admitted and then denied, and her contradictory statements may be referred properly to her condition, and in some part qualified by the condition she was placed in. It is all a matter for you. To the charge as given the respondent excepted. Verdict of guilty of murder in the first degree. The case shows that the defence introduced no evidence as to the admission, and no evidence as to the boots, except that respondent wore to Barre and Montpelier the day of the homicide a pair of rubber boots; and we insist it was error in a criminal case to allow the State to introduce further and additional testimony — strictly cumulative testimony — as to said admissions. The testimony objected to was cumulative, and therefore erroneously admitted. Parker v. Hardy, 24 Pick. 246 ; Bradish v. State, 35 Vt. 452. The rule of practice in this State allowing the party having the affirmative to make a prima facie case in the opening, and then if impeached to strengthen his case by general testimony, does not apply to criminal cases. 1 Archb. Crim. PI. & Ev. 576, n., 585 ; Bex v. Stimpson, 2 C. & P. 415 ; Bex v. Hilditch, 5 0. & P. 299. The charge was erroneous. The evidence introduced by the respondent as to Hannah Perrin was evidence in chief in favor of the respondent, tending to show that another was in fact guilty of the homicide. The jury must have understood from the charge that Mrs. Perrin’s contradictory declarations could only be weighed by them to impeach her testimony as a witness for the State. They were misled by the following portion of the charge: “ It was the duty of the government to produce her here before the jury, that you might hear her story, and give just such credit to it as in your experience you think it was entitled to, and if you discard it wholly, it neither aids nor injures the case made by the State.” The evidence of Hood was properly admitted in rebuttal of the respondent’s sons. It was also admissible because no such rule as claimed by the respondent exists in this State. Forbes v. Davison, 11 Vt. 660. But if there is such a rule it is a rule of practice whose application is discretionary with the court, and is not to be disturbed on exceptions unless grave and manifest wrong result. Pingry v. Washburn, 1 Aik. 264; Clayes v. Ferris, 10 Vt. 112 ; G-oss v. Turner, 21 Vt. 437 ; Saund. PI. & Ev. 1100 ; Stcph. N. P. 1802 ; Roscoe Crim. Ev. 79 ; 1 Stark. Ev. 151, n. k ; Dare v. State, 22 Ala. 23 ; Halle v. The People, 4 Park. Cr. (N. Y.) 592; Sartonius v. State, 24 Miss. 602, 608 ; 5 Mo. 71, 81; 2 Phil. Ev. 17 ; 2 Rus. Crimes, 588 ; Bees v. Smith, 2 Stark. 31 ; Curar v. Sodo, 1 Moody & M. 85; State v. Bridgman, 49 Vt. 202 ; Slate v. Mann, 31 Conn, 572; 1 Best Crim. Proceed, s. 966. The charge was correct. Stevens v. Talcott, 11 Vt. 25 ; 2 Rus. Cr. 634; 2 Brod. & B. 297, 298.