24 A. 782 (R.I. 1892), State v. Ellwood

Citation:24 A. 782, 17 R.I. 763
Opinion Judge:TILLINGHAST, J.
Party Name:STATE v. ELLWOOD.
Attorney:Robert W. Burbank, Atty. Gen., for the State. Charles F. Baldwin and Edward A. L. Gannon, for defendant.
Case Date:July 02, 1892
Court:Supreme Court of Rhode Island

Page 782

24 A. 782 (R.I. 1892)

17 R.I. 763




Supreme Court of Rhode Island

July 2, 1892

Robert W. Burbank, Atty. Gen., for the State.

Charles F. Baldwin and Edward A. L. Gannon, for defendant.


The defendant, who was convicted of the crime of burglary at the September term, 1891, of the court of common pleas, brings up this case by bill of exceptions, and prays for a new trial on the ground of erroneous rulings by the court below, during his trial. The numerous exceptions taken by the counsel for the defendant are summed up by them in the following points, which we will treat as single exceptions, viz.: First, the state had no right to prove his previous bad character until he himself had put his good character in issue; second, that the defendant had the right to cross-examine any government witness to test his recollection, and to show the probabilities of his being able to recollect the alleged fact to which he had testified in his direct testimony; third, that the state had no right to introduce testimony tending to show that the defendant might have been engaged in the commission of some other offense; fourth, that the defendant could not be required to testify to any former conviction, except upon the production of the record of such former conviction; fifth, that the court in charging the jury had no right to presume that a witness for the defense was either willfully falsifying or ignorantly mistaken; sixth, that the state had no right to exhibit and parade before the jury the implements ordinarily used in the commission of such offenses as that charged against the defendant, until such implements were proved to be the property of the defendant; seventh, that the court erred in admitting immaterial testimony prejudicial to the defendant; eighth, the court erred in allowing the state to introduce and present to the jury a picture taken of said defendant, said picture being taken to be placed in the rogues' gallery.

The first and third exceptions may properly be considered together. Of course there is no contention between the defendant's counsel and the attorney general as to the correctness of these points as matter of law, and the only question, therefore, is whether the state was allowed to prove the defendant's bad character, and his connection with the commission of some other offense, in the manner suggested. Walter Smith, a detective of the police department of Hartford, Conn., was permitted to testify, against the defendant's objection, that he heard Mr. O'Day say to the prisoner, "Your name is George Ellwood. You are wanted in Ohio. Isn't that so?" and that Ellwood made no answer. That in answer to the question, "What conversation did you have regarding who he was?" the witness answered, "As I said, Mr. O'Day said his name was George Ellwood, where he belonged, and that he was wanted in Ohio. He walked up to him, and says, 'George Martin is not your name. Your name is George Ellwood. You belong in Ohio, and you are wanted there.' Mr. Ellwood did not answer." Patrick O'Day was asked to state what was said by him or by the defendant in relation to who the latter was. He answered as follows: "I said to him, 'I understand that you have informed the officers that you were shot in Worcester.' I told him I did not think his name was Martin. Question. How did you know about James Martin? Where did you get hold of the name? Answer. He had told me that his name was James Martin, on Friday morning. Q. Beginning on Friday morning, tell me about the conversation that was had as to his identity. A. I went into his room on Saturday. I saw him twice on Friday, and said I was satisfied that he was not James Martin, and told him about some other matter. On Saturday, after making investigation, I went to the hospital after dinner, and I said to him, 'Now Jim,--I will call you Jim, but your name is not Jim,--of course you won't acknowledge who you are You are wanted in Columbus, you are a fugitive...

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