Quinn's Adm'rs v. Halbert

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

I. The first question in this cause arose upon impanelling the jury. When court adjourned the first day of the trial eleven jurors had been accepted, six of the regular panel, and five talesmen. When it commenced the second day a panel, who were out on the first, were present and the eleven accepted jurors were discharged, and a panel selected from those regularly in attendance. The defendant excepted to the order of the court discharging the eleven jurors; and the question presented is, was such order error?

It is a settled rule of practice, that some prejudice to the excepting party resulting from the rulings of the court below in organizing the jury, or, at least, some infringement of the statutory provisions relating thereto, must be shown before this court will revise the proceedings of the trial court. It is within the discretion of the court to direct the clerk in calling a panel to omit the names of such jurors as are presumably disqualified or unable to serve; for example, such as have been present and listened to a former trial of the same cause, or a trial involving the same questions; those ill or whose family are; and many other instances that might be named. A wide discretion is allowed *182 the court in such cases; and until a panel is complete, we think a party has no vested right in any particular juror that may not be taken from him should the exigencies of the case in the discretion of the court require it. Thompson and Merriam on Juries, sec. 271, say: “ So far as the formation of the jury is concerned the litigant parties have a constitutional right to demand that it shall be impartial; but this right is not impaired by the exclusion of jurors, though never so impartial, so long as impartial ones remain and try the case. And, it has been pertinently asked, what advantage would accrue to a party, should a new trial be awarded, because of the exclusion of competent jurors in his case? Obviously the only effect of granting the motion would be to take the verdict of another impartial jury. Upon the new trial he could not demand that the jurors of whose exclusion he complains should sit in the case. He has therefore suffered no injury, nor, in the eye of the law, could he be possibly benefited by another trial. This view of the law does not permit a trial judge to exclude competent jurors arbitrarily and unreasonably from participating in the trial of a cause, civil or criminal. Whenever it shall appear that the court has thus abused its discretion, a new trial will doubtless be granted.” In Phelps v. Hall, 2 Tyler, 401 , the court say that: “No occasion can occur to render it necessary for one juror to sit on the panel in preference to another.” We think the discretion of the court below, in the case at bar, reasonably exercised. An unusual number of talesmen were upon the panel, the regular jurors were in attendance, the tidal was to occupy several days; and it was much better that the regular jurors should try the case and the expense of talesmen avoided, than to retain the latter upon the panel; and as some question might arise as to the challenges, and in fact did, it was not unwise to discharge the six regular jurors and begin ele novo. It does not appear but that the six, who were so discharged, were subsequently drawn. ■ It is likely some of them were; *183 and as the defendant has already had all that he is now seeking — a trial by an impartial jury — his exception to the ruling upon this question should not bp sustained.

II. Was the transcript of Quinn’s testimony admissible? While there is force in the suggestions of the defendant’s counsel, we think that sec. 816 of the R. L. makes’ it evidence, although the stenographer described in words signs made by the witness. What his testimony was upon the former trial could have been shown by witnesses who heard it. See cases cited in Roberts’ Digest, 285. And the signs made by the witness are no doubt as well described by the stenographer, in his transcript, as they would have been by witnesses on the stand.

I take this occasion to note the dissent which I expressed in consultation at the former hearing, from the conclusion of the court, that Quinn was a competent witness. The fact appeared that he was not, and could not have been cross-examined. Thus the defendant was deprived of one of the two great tests of the truth of a witness, viz.: a cross-examination. I should, therefore, have excluded his whole testimony, but the court held otherwise, and the statute makes a transcript made by the stenographer evidence.

The defendant was not entitled to a compliance with his request that the manner of its reproduction materially lessened the weight to he given his testimony. It would have been proper for the court to have told the jury that it should have been considered by them in determining that question. How much it lessened its weight was a question for them, not for the court.

III. Doran became a bankrupt in December, 1877. In March afterwards his assignee sold a stock of ready-made clothing, belonging to the estate, to the plaintiffs’ intestate, Quinn. It is claimed by the defendant that the goods in question were a part of said stock; that the sale to Quinn was a mere sham or cover; that it was really made to Doran; *184 that he and. Quinn confederated in causing it to be made in the name of Quinn to prevent their attachment by Doran’s creditors. And there was strong evidence in the case tending to support such claims, i. e., tending to show that Doran was the active, and substantially the sole, participant in the purchase, control, management, and disposition of the goods. No books were kept, no account of the sales made, Doran borrowed of Quinn money to replenish the stock, no settlement was ever made between them; the goods remaining unsold were taken off by Doran in the spring of 1881; and some other facts of like tendency.

If the defendant could satisfy the jury that Quinn and Doran had conspired in the matter, and that the sale to Quinn was a sham and cover, then the acts and declarations of Dpran while they were engaged in carrying out their scheme were admissible against Quinn. Having given testimony tending to establish the conspiracy, it was error to reject the testimony of the witness, Peat, of the declarations of Doran, while engaged in selling the goods. State v. Thibeau, 30 Vt. 100 ; Jenne v. Joslyn, 41 Vt. 478 ; Lincoln v. Claflin, 7 Wall. 132 . The letter to Hawley, Eolsom & Martin, written after the consummation of the scheme, was not admissible against Quinn. Only those declarations are admissible against other co-conspirators that are made while the common design is being carried out.

Quinn held a claim against Doran’s estate based on two notes given for twenty-two hundred dollars, and the defendant offered to show the declarations of Doran that he was the owner of the claim and entitled to the dividends. The declarations were made upon an occasion when a compromise of this suit was attempted. If material, it was admissible notwithstanding the attempted compromise, it being a fact admitted because it was a fact. Doon v. Ravey, 49 Vt. 293 . This testimony was excluded, together with that offered in connection with exhibit F, the receipt for two thousand dollars given by Quinn to Mrs. Doran at the *185 time of the bankrupt proceedings in December, 1877; the testimony as to the purchases and sales just prior to the bankruptcy in 1877, and exhibit E, the letter announcing Doran’s insolvency. These acts and declarations of Doran are admissible in any suit against him. Whether they were admissible upon the trial below against Quinn, depended upon whether there was evidence in the case of a conspiracy between Quinn and Doran at the time the acts were done and the declarations made. We think the evidence did tend to show a combination between them as early as the fall of 1877 to prevent Doran’s creditors receiving their pay, and that it existed until the goods unsold were carried off by Doran in the year 1881.

There can be no doubt as to the evidence tending to show an intent on the part of Doran to defraud his creditors; and the fact, if established, that Quinn presented large claims against the estate and at the same time held two thousand dollars of the money of Doran, which was not offset against his claims and its existence kept concealed, we think had a strong tendency to show a like intent on the part of Quinn, and a confederacy between them; in fact, there was evidence tending to show an intent on the part of both to defraud Doran’s creditors at the time of the bankruptcy, and those who became creditors subsequently; so the acts and declarations of one became admissible against the other. In Bigelow on Fraud, 484, it is said: “Slight evidence of collusion or concert is sufficient to let in the declarations of one of the parties as evidence against all, though not made in the presence of each other; but there must be some evidence of the combination. Such may be inferred, for example, from the relation and conduct of the parties, and the circumstances surrounding them.” Although the parties represented by the defendant were not creditors of the estate, but became creditors of Doran subsequently, we think the proceedings of Quinn and Doran may be regarded as one continuous act, they having one common design and *186 one object, viz.: the defrauding of Doran’s creditors, his then creditors as well as subsequent ones. It is true the receipt of Quinn was given to Mrs. Doran; but the claim and offer of the defendant was to show that it was in fact Mr. Doran’s. The testimony tending to show the collusion of the parties to defraud the creditors in the fall of 1877, and until the goods were carried away became material, and should have been admitted, and consequently the acts and declarations of Doran during the same time.

The testimony as to the insurance policies, Quinn’s frequent visit to the store, and the word “ agent” being on the sign, was properly admitted under the opinion in this case, as reported in 55 Vt. 224 .

IY. The defendant requested the court to charge the jury, first, that if Doran deposited five hundred dollars to secure Quinn against damages or costs in this suit, and there was evidence tending to show that he did, that it was evidence to be weighed by them as tending to show collusion in respect to the goods in question. Quinn claimed the goods and brought this suit to recover them; and the fact that indemnity was given him by Doran to secure him against an adverse result of the suit, had a tendency to show that the goods were Doran’s, not Quinn’s, and, as we understand, the evidence was admitted for that purpose. At the same time it might have been consistent with Quinn’s having but a limited interest in the goods, that he held them as secui’ity for a sum less than their value, and Doran under an obligation to protect Quinn against loss, the latter having taken the goods as security for the amount he had advanced to buy them of the assignee; or consistent with Quinn’s having sold them conditionally to Doran.

The court should not have told the jury that it was for them “ to say what it (Doran’s depositing the five hundred dollars to secure Quinn) tends to show,” and to weigh it upon the question of fraud, if they thought it had any ten *187 deucy to show it. The court said: “ Whether it is any evidence of fraud in the original transaction or not, is a question for the jury to consider.” Whether it was any evidence was for the court; what weight should be given it was for the jury. The jury should have been told that it ivas evidence of fraud, and that they should weigh it with all the other evidence in the case, and determine whether fraud was proven, or whether Quinn still had an interest in the goods, either an absolute or conditional one.

The fourth, fifth, and seventh requests were fully complied with; and the defendant was not entitled to a compliance with the thirteenth, as Quinn’s own testimony and exhibits in the case tended to show that he had not been paid in full for the goods. No other questions have been made in the case.

The .judgment is reversed, and cause remanded for a new trial.