Colburn v. Town of Groton

• Decision Date: 15 March 1890
• Parties: COLBURN v. TOWN OF GROTON.
• Court: New Hampshire Supreme Court

28 A. 95

66 N.H. 151

COLBURN

v. TOWN OF GROTON.

Supreme Court of New Hampshire. Grafton.

March 15, 1890.

Exceptions from Grafton county; before Justice Lewis W. Clark.

Case by J. D. Colburn against the town of Groton for personal injuries sustained by reason of alleged defects in defendant's highway. There was a verdict for defendant, and plaintiff excepted. Judgment entered on the verdict.

Plaintiff offered to show that one Mrs. Estes was riding in a sleigh with him, and was also injured by the accident, and that defendant settled an action for damages by her by paying her claim. To the exclusion of this evidence, plaintiff excepted. The place of the accident was a hillside; the alleged cause being the sloping form of the hill, its icy condition, and its lack of a railing. Plaintiff offered to show by a witness that there was a custom among travelers in carriages to give warning at the top of the hill to avoid meeting travelers at the place where the accident occurred, and that witness and her husband had given and received such notice when approaching such place. This evidence was also excluded, and plaintiff excepted.

S. B. Page, for plaintiff.

Fling & Chase, for defendant.

DOE, C. J. In a criminal case, when the defendant's confession is offered as evidence, it is necessary to inquire whether it was made under the influence of hope or fear, and for the purpose of gaining some benefit or avoiding some harm connected with the criminal charge. If not made for that purpose, it is held to be voluntary, and is evidence. The purpose of the confession is a question of fact. This distinctly appears in State v. Wentworth, 37 N. H. 196, 218, 219, 220, and other cases in which the reported decisions contain a full examination of the evidence bearing on the question. In State v. Howard, 17 N. H. 171, 181-185, the court say: "We are by no means satisfied that judges, in their anxiety to preserve all the rights of the accused, have not gone further in excluding confessions than the principle required them to do. * * * The principle of admission and exclusion is well settled, and founded upon a most satisfactory basis. Confessions obtained by the hope of favor, or by fear of punishment are inadmissible. It is the hope of escape from temporal punishment which excludes, and the hope must be derived from the inducements. * * * The evidence is rejected because the inducements may have led to a false statement, and the confession is therefore not entitled to credit, and not because the public faith is pledged by means of the promise. * * * it is in the application of this principle that the difficulty lies; that is to say, in determining whether hopes have been held out, or fears excited, in the particular case. In the present instance the defendant was told that he had better tell the truth. It has been supposed that a party accused might, from such a declaration, understand that it would be better for him to confess himself guilty. * * * But why should any one so understand, if he was in fact innocent? * * * We do not intend to pass upon this question at this time. Our object is to show how slight, to say the most, is the probability that a declaration of this kind excites any hopes that should cast a suspicion upon the truth of the confession which follows it. * * * The hope here—assuming that hope was excited by the declaration of the magistrate that he had better tell the truth-must have been of the slightest possible character, and the circumstances which intervened between that time and the period when he made the confession which was admitted can leave no shadow of doubt whether the last confession was made through some lingering belief, arising from the declaration of the magistrate, that if he still continued to confess he might find favor. The evidence is very strong upon this point. * * * We have no hesitation in sustaining the ruling. If anything could have extinguished the faint glimmer of hope which might possibly have existed in the first instance, these circumstances must have been effectual for that purpose. In considering the probable reason for this last confession, we must not lay out of the case the other circumstances which intervened between that and the first" "The probable reason for" a confession cannot be a question of law. "in the earlier cases there has been much conflict upon this subject, resulting in some degree from failing to recognize the question to be largely one of fact alone, to be determined upon a consideration of all the circumstances of the case, instead of which, some of the cases seem to have given to particular expressions a technical character, and to have excluded the confessions where, upon a consideration of all the circumstances, it would not have been found, as matter of fact, that the confessions were made under the influence of hope or fear held out by another. * * * Whether the confession * * * was voluntary or not is purely a question of fact,—as much so as the question whether a witness offered to testify was interested or not, or whether a witness was qualified to testify as an expert, or whether the loss of a paper has been shown, so as to allow the introduction of secondary evidence of its contents. In this and the like cases, the judge who tries the cause must decide, although in some instances he may submit the question of fact to the jury. In either case, whether the decision be by the judge alone, or it be also passed upon by the jury, no exception lies, so far as the question is one of fact. If, however, upon the evidence reported by the judge, it clearly appears that there was error in his finding upon the matter of fact, it may be corrected, as in other cases where a verdict is against evidence." State v. Squires, 48 N. H. 364, 369, 370.

When it is said that the admissibility of a confession is a "matter resting wholly in the discretion of the judge, upon all the circumstances of the case," (1 Greenl. Ev. § 219,) the meaning is not that he has arbitrary power, but that the question is one of fact. "'Judicial discretion,' in its technical legal sense, is the name of the decision of certain questions of fact by the court." Darling v. Westmoreland, 52 N. H. 401, 408. "Whether the confession made to Leavitt was made in consequence of inducement held out by Leavitt was a question of fact to be decided by the judges who presided at the trial; and their finding upon this question is a finality, as much as the verdict of a jury upon a question of fact." State v. Pike, 49 N. H. 399, 407. "The law is too well settled in this state to be considered an open question. We do not interfere with the verdict of a jury, to set it aside as against evidence, unless we are well satisfied that it has been procured through corruption, or manifest mistake in the consideration and application of the evidence, and that substantial justice has not been done." Lisbon v. Bath, 21 N. H. 319, 335; Wendell v. Safford, 12 N. H. 171, 178; Gould v. White, 26 N. H. 178, 188; Clark v. Society, 45 N. H. 331, 334; Houston v. Clark, 50 N. H. 479, 483; Jewell v. Railroad Co., 55 N. H. 84, 95; Fuller v. Bailey, 58 N. H. 71; Smith v. Richards, 29 Conn. 232, 244; Hamaker v. Eberley, 2 Bin. 506, 510; Wilkinson v. Greely, 1 Curt. 63; McLanahan v. Insurance Co., 1 Pet. 170, 183; Railroad Co. v. Fraloff, 100 U. S. 24, 31; Shoemaker v. U. S., 147 U. S. 282, 305, 306, 13 Sup. Ct. 361. When a case is tried by the court, a motion to set aside the finding on the ground that it is against the evidence "stands upon the same footing as if there had been a verdict of the jury." Burnham v. McQuesten, 48 N. H. 446, 454. Whether the fact found by the court at the trial term is that the defendant is guilty, as in Burnham v. McQuesten, or that the defendant's confession was voluntary, as in State v. Squires, a motion for a new trial on the ground that the finding was against the evidence raises a question of fact to be decided by a court upon due consideration of the proof.

"The term 'admission' is usually applied to civil transactions, and to those matters of fact in criminal cases which do not involve criminal intent; the term 'confession' being generally restricted to acknowledgments of guilt. * * * The rules of evidence are in both cases the same. * * * A distinction is taken between the admission of particular facts and an offer of a sum of money to buy peace, for, as Lord Mansfield observed, it must be permitted to men to buy their peace without prejudice to them if the offer should not succeed; and such offers are made to stop litigation, without regard to the question whether anything is due or not. If, therefore, the defendant, being sued for £100. should offer the plaintiff £20, this is not admissible in evidence, for it is irrelevant to the issue. It neither admits nor ascertains any debt, and is no more than saying he would give £20 to be rid of the action. But, in order to exclude distinct admissions of facts, it must appear either that they were expressly made without prejudice, or at least that they were made under the faith of a pending treaty, and into which the party might have been led by a confidence of a compromise taking place. * * * it is the condition, tacit or express, that no advantage shall be taken of the admission, it being made with a view to, and in furtherance of, an amicable adjustment, that operates to exclude it. But if it is an independent admission of a fact, merely because it is a fact, it will be received." 1 Greenl. Ev. §§ 170, 192.

"An offer by a party to pay a sum of money by way of compromise of an existing controversy is not to be used as evidence against him. But an admission of particular facts, made during a treaty for a compromise, may be given in evidence as a confession. * * * The reason why a mere offer of money or other thing by way of compromise is not to be evidence against him who makes it, is very plain, and easily understood. Such an offer neither...