54 Vt. 83 (Vt. 1881), State v. Hannett

Citation:54 Vt. 83
Opinion Judge:POWERS, J.
Attorney:Elisha May , for the respondent. Henry C. Ide , for the State.
Court:Supreme Court of Vermont

Page 83

54 Vt. 83 (Vt. 1881)




Supreme Court of Vermont.

October, 1881

Arson. Evidence. Stenographer. Counsel's Right in Commenting upon Evidence. Other Crimes, when not to be Proved .

1. Our statute has not changed the definition of the crime of arson as given by the common law,— the wilful and malicious burning of the dwelling-house of another; hence, when one burns the dwelling-house that he is lawfully occupying, in legal sense, it is not arson; for arson is a crime against the security of the dwelling-house as such, and, not, as property.

2. To prove that the respondent had a motive for burning the building, evidence was admissible to show his ill-feeling and its intensity towards his wife, who had an interest in it; but not the cause, merits and consequences of the quarrel; hence, it was error to admit proof that the wife had procured a divorce for intolerable severity; that the respondent had been restrained by injunction from inflicting personal abuse upon her; and that, subsequently, the marriage was annulled on the ground of bigamy.

3. It was error to read in the hearing of the jury the record of the court in the divorce proceedings to establish the competency of the wife as a witness, it being a question solely for the court to determine.

4. It was error to allow the State's attorney to go into an inquiry, against an exception, on the cross-examination of the respondent as to whether he had been complained of and fined by a town grand juror for ill-treatment of his wife.[a1]

5. To contradict the respondent by proving that he had testified differently on the former trial under the same indictment the admissibility of the stenographer's notes of his cross-examination depended on their relevancy; if relevant, admissible, otherwise, not; hence, it was the duty of counsel to have selected those passages contradictory to his last evidence.

6. A stenographer, although a sworn officer of the court, when he reads his notes of the testimony of a former trial, as evidence, must be sworn like any other witness; but if not, if known to the opposite counsel, the objection should be raised in season that the oversight may be corrected.

7. Counsel, in their arguments to the jury, are bound to keep within the limits of fair and temperate discussion of the evidence in the case. Any violation of this rule entitles the adverse party to an exception.

8. It is the duty of the court in a criminal trial in its charge to the jury to review and explain the evidence and claims of the respondent as fully and fairly as those of the State.

Page 84

INDICTMENT for burning a dwelling-house, Caledonia County, December Term, 1881. Jury trial, ROSS, J., presiding; plea, not guilty; verdict, guilty.

The facts are sufficiently stated in the opinion except the following. At the close of the charge to the jury, the respondent's counsel claimed that the court had not reviewed his evidence and claims as fully as it had those of the State, and requested the court to do so; but the court declined to modify its charge.

Elisha May , for the respondent.

House— and " dwelling-house" — do not mean the same thing. Bish. Stat. Crim. s. 213. The gist of the offence is the injury to the security of human habitation or occupation— and not to the property. 2 Bish. Cr. Law, ss. 12, 13; State v. Toole , 29 Crim. c. 342. The same doctrine is laid down in all the text writers upon criminal law. 2 Whart. Crim. Law, s. 1671; 2 John. 105; 3 Black. (Ind.) 485; 5 Stew. (Ala.) 175; 52 Ala. 357. It was error to admit evidence of the divorce, & c. State v. LaPage , 57 N.H. 245; s. c. 24 Am. Rep. 64; 50 Vt. 316; 15 Am...

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