State v. Babcock

The opinion of the court was delivered by Redfield, J.

The respondent is indicted for burning his own building, with intent to defraud the insurance company. Mrs. Mitchell was improved as a witness, to establish the fact that some part of the property was insured for more than its value, and more than it cost the respondent; and she so testified ; but in cross-examination she disclosed that she did not, personally, know the fact; and that she only saw the note which her husband said was given for the cai-riage, at the price of f 80. The court told the jury that her testimony “ was of no account ” ; and the State’s attorney informed the jury that such testimony was wholly withdrawn from their consideration. All parties concerned in the trial *574 supposed that the witness knew whereof she testified, until near the close of the cross-examination ; and the court did all a court could do, by discharging the witness, and informing the jury that her testimony was “of no account.” It was no fault of the State’s attorney, for he had a right to suppose that the witness knew what, she assumed to know. And the witness (like other women) supposed that what her husband or other credible person told her was a fact, was so. All persons are made witnesses —“ Jews, Turks, and infidels.” They speak in every language; some stammer and stutter, and communicate their knowledge in fragments;' some, from stupidity and ignorance, assume to know what, by legal rules of evidence, they do not know. Some attempt in broken English, or by signs, to make statements which neither court nor counsel nor jury can comprehend. If, in this confusion of tongues, imperfect statements, and opaque ideas, it should be finally disclosed that a witness had been stating as facts matters of which he had no legal knowledge, a court must discharge the jury and begin the case de novo, then trial by jury would become impracticable.

The court committed no error, because he supposed, and had the right to suppose, the witness was speaking of matters within her own knowledge ; and counsel did not except till the testimony was in the case, because they were in like ignorance.

The respondent was not prejudiced, because he admitted on the stand that what the witness attempted to state as a fact, was true.

This exception cannot prevail.

The court charged the jury that the burning shown by the testimony, if believed, constituted the offence, within the meaning of the statute ; to which the respondent excepted ; but this exception has not been pressed in argument by the respondent’s counsel; and we understand it i? waived. Certainly, we think the exception cannot be sustained. The building insured was partially destroyed ; and the respondent claimed payment for the damage caused by such fire. His criminal purpose had become so far executed that the mischief against which the statute is aimed, was perpetrated, but to less extent than he purposed, by *575 reason of the extinguishment of the fire, and the discovery of his crime.

The respondent asks this court, by the writ of mandamus, to compel the presiding judge to allow, sign, and certify certain other exceptions.

This petition is addressed to the sound, judicial discretion of the Supreme Court. The writ will never be allowed if the right be doubtful. High on Ex. Rem. ss. 9, 10, 14; Free Press Asso. v. Nichols, 45 Vt. 7 .

Their exceptions to the charge were not taken, or attempted, until after the jury had left their seats, and retired from their box. And when attempted, counsel were informed that “ they were too late.” In this the court were but enforcing an express rule of court, and within the general practice in this State.

After the verdict was rendered, the presiding judge informed the counsel that “ the exceptions they had in mind would be allowed.” But when these exceptions were actually written out and presented to the judge for allowance, he refused to allow them, for the reason that no such exceptions had been taken, or noted, nor brought to the attention of the court, until the verdict had been rendered, and the jury separated. Counsel say they had “ in mind ” these exceptions, but had never irftimated such to the court. The judge says he supposed they had “in mind” exceptions whereof they had made intimation, and has allowed such ; but should not have allowed these if they had been stated. If the presiding judge used the expression imputed to him, we do not think that counsel could rightfully infer that he had bound himself to allow any and all exceptions, however absurd or untrue, which counsel might present to him, and such as had never before been named. It was rather such as by the course of the trial and the objections of counsel he had reason to suppose they had “ in mind,” and not such as he had before expressly refused. But, if we assume that the presiding judge had expressly promised to allow these exceptions (a fact not claimed to have been proved), and when presented he found them to consist altogether in technical fault with the .phraseology of the charge — a matter that could be made certain in few words, and, .as he judged, *576 could not mislead the jury -r- then the judge did not fulfil his promise; but he did not refuse to discharge a duty imposed by law. And it is not the office of this writ to enforce contracts. Bailey v. Oviatt, 46 Vt. 627 . What facts occurred during the trial, what objections to testimony, what exceptions were taken, and the order of them, rests entirely with the judge presiding at the trial. It would be a great perversion of the law, and, in our view, of the proper office of this'writ, to require, by mandate, of the presiding judge to certify into this court a fact, which, on his conscience and in his answer, he declares not to be true.

The writ will never be granted when it would have been unavailing. High on Ex. Rem. s. 14, and cases cited. Would these exceptions, if allowed, avail the petitioner ?

Section 8, c. 113, Gen. Sts., declares it criminal in “ any person to set fire to the dwelling-house of another,” &c. Section 3 ' of the same chapter denounces a penalty upon “ every person who shall wilfully and maliciously burn, or cause to be burned, his own dwelling-house, &c., with the intent to defraud any insurance company,” &c. The court, in his charge, stated that “ we have a statute making it criminal for a person to set fire to his own buildings with the intent to defraud an insurance company.” “ The indictment in this case is under that statute.” And in that connection, immediately following, the judge says, “ He was insured upon that property in this company — a fire was set in the cider-mill building; it took effect upon the roof, and although it did not burn the building all up, it ‘ burnedand burned up, within the meaning of the statute; so if the respondent caused that burning, then he is guilty under the statute. The fact that it did not burn more extensively does not prevent its being the very crime the statute prescribes. The object of the statute was to prevent the setting of fires, and the burning of buildings,' with that intent. The crime consists in the setting the building on fire so that it burned.” If we take this isolated portion of the charge, unexplained by the other portions, we do not see how the jury could possibly have been misled. The judge did, to be sure, use the expression, “ set fire to,” instead of “ burn,” his own building, and was not strictly accurate. But he, in the same connection, *577 defined what acts must be proved to make the respondent guilty of the crime. He must have set his own building on fire so that it burned ; and with the intent to defraud the insurance company. And if the jury found from the evidence that the respondent set the building on fire so that it burned to the extent the evidence tended to show, and with the criminal intent required by the statute, he was guilty of the crime defined in the statute. The language was clear, full, and definite, and such as the wayfaring man might follow, “ and not err therein.” And if this exception had been allowed and certified, the respondent could take nothing by it.

The writ is denied, and the petition dismissed with costs.