Godwin v. State

• Decision Date: 19 January 1910
• Citation: 74 A. 1101,24 Del. 173
• Court: Supreme Court of Delaware
• Parties: JOHN GODWIN, defendant below, appellant, v. STATE OF DELAWARE, plaintiff below, respondent

74 A. 1101

24 Del. 173

JOHN GODWIN, defendant below, appellant, v. STATE OF DELAWARE, plaintiff below, respondent

Supreme Court of Delaware

January 19, 1910

Supreme Court, June Term, 1909.

APPEAL (No. 1, June Term, 1909) from the Court of General Sessions in and for New Castle County.

Phillip Q. Churchman, David J. Reinhardt, Frank L. Speakman and Philip L. Garrett for appellant.

Andrew C. Gray, Attorney-General, and Josiah O. Wolcott, Deputy Attorney-General, for respondent.

CURTIS Chancellor, PENNEWILL, Chief Justice, and CONRAD and WOOLLEY Associate Judges, sitting.

OPINION

CURTIS, Chancellor

The defendant below, appellant, John Godwin, was found guilty of offering a bribe to Philip Oliver to vote at the general election held on November third, 1908, and sentenced, and an appeal taken by him to this Court. By this appeal the cause was heard de novo on the testimony and proofs taken. The offense is that prescribed by Section 7 of Article 5 of the Constitution, and the trial had in the Court of General Sessions for New Castle County was before the Judges thereof without a jury and upon information filed in the place of an indictment found by a grand jury. There are twelve specifications of error including one that the appellant was not guilty under the evidence adduced.

Several of the questions raised by the specifications will be disposed of by the admissions made by the prisoner, through his counsel, at the trial below in open Court. Aside from the issue of the guilt or innocence of the defendant in the trial below and the evidence introduced to determine it, an issue is raised upon the appeal as to what was or what was not admitted as evidence by counsel at the inception of the trial. The State claims that the defendant admitted the formal execution of the bond and the fact that Oliver, the prosecuting witness, was a registered voter. The defense claims that the admission went only to the execution of the bond and did not include the fact that Oliver was a registered voter. Before the issue can be determined the Court on review must determine what was and what was not admitted as evidence at the trial below. What was or what was not admitted becomes a fact material to the review on appeal, and being a fact its determination should be sought by following the rules usually applied in determining any other judicial fact.

Upon the threshold of the trial and before any testimony was heard, the Attorney General addressed the Court and stated the admissions of matters of fact made by the defendant, and this statement was made presumably as the result of some conference between the Attorney General and counsel for the prisoner. To this statement the counsel for the prisoner made no reply. Then, according to the record, Judge Spruance, one of the trial Judges, addressed an inquiry concerning the correspondence between the bond and the information. To this inquiry counsel for the prisoner made his reply, addressing Judge Spruance, explaining the character and extent of his admission respecting the execution of the bond. As the question of Judge Spruance related only to the bond the reply of counsel was limited to the subject of that inquiry, and this statement was made in reply to Judge Spruance's question and clearly not in reply to the Attorney General's statement of what was admitted. As this inquiry of Judge Spruance and the reply thereto of counsel for the appellant did not embrace or touch that part of the Attorney General's statement relating to the admission as a fact that Oliver was a registered voter, counsel for the accused, remained silent when the announcement of that admission was made. But for his explanatory reply to Judge Spruance's question about the bond, from which the admission of the execution of the bond is a necessary inference, counsel for the appellant made no reference at all to the statement of the Attorney-General that counsel for the defendant admitted the execution of the bond and that Oliver was a registered voter. To interpret the record and determine whether evidence that Oliver was a registered voter is in the record, the Court must ascertain whether the silence of the defendant's counsel amounted to an assent to the statement of the Attorney-General to the Court of what was admitted by the defendant's counsel. Such silence of counsel indicated assent or dissent to the statement of the Attorney General, or in other words, that silence evidenced either assent or dissent. Whether defendant's counsel assented or dissented by his silence may be ascertained by the ordinary rules of evidence relating to a man's silence implied to ascertain a man's meaning when considered with respect to what was said, where it was said, what was his relationship to the party making the statement, his duty to the Court and his obligation then to speak. Counsel for the appellant urged that the silence of the counsel for the defendant at the trial was not a "distinct and formal declaration" of the things admitted, which, according to all the authorities, is requisite to have the admission of counsel accepted in lieu of testimony. Yet an examination of the authorities cited to support the undisputed rule clearly shows that the admissions must be distinct and formal in character in order to make certain, beyond dispute, the meaning of the admission, and to distinguish the exact terms of the admissions to be made in the cause as distinguished from other admissions which are mere matters of conversation between counsel in the cause. There is nothing in the cases cited to show that by silence or by nod of his head an attorney might not formally admit that which another attorney distinctly stated to be admitted by him. The question reverts to the meaning of the silence of the defendant's counsel at the time when the Attorney-General stated the position of such counsel.

Under certain circumstances the conduct of a party is relevant as evidence of the admission of some fact; so also the failure of a party to reply to a statement made in his presence is, under certain circumstances, admissible in evidence as tending to show a concession of the truth of the facts stated and the failure to reply is significant in proportion to the extent that a reply would be natural.

"Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanour or conduct of the party. And whether it be acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or such language fully understood, by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must be not only such as afford him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply from men similarly situated."

Taylor on Evidence, Sec. 809; citing 1 Greenleaf on Evidence, Sec. 197.

But the probative force of this kind of evidence is not great and it is received with caution. In addition to extra judicial admissions, there are admissions made in judicial proceedings, the effect of which is either to establish the point covered by the admission in lieu of evidence, or to act as a waiver of evidence in regard to it, the result being the same, namely, to dispense with the proof. Frequently judicial admissions are those of counsel or attorneys of record. When made in good faith in a professional capacity for the purpose of dispensing with testimony, and to that end are distinct and formal, admissions of counsel bind the client, and they certainly do, when made at the trial in open Court, though made orally. The practice to so accept such admissions in lieu of testimony is so well settled and rests upon such a sensible basis that authorities need not be cited to support such practice. It is quite true, as a general principle, that the silence of the accused at a judicial proceeding or hearing is not an implied admission of the truth of statements made in his presence, but it is true in a criminal proceeding, as in a civil one, that an admission of fact made at the trial in open Court by the prisoner or his counsel may properly be considered by the jury.

3 Greenleaf on Evidence, Sec. 39.

As with parties, so with counsel, silence under certain circumstances means acquiescence. When an attorney at the trial in open court, in the presence and hearing of the attorney for the adverse party, states to the Court the matters of fact admitted in the cause by the adverse party, the silence of the attorney for such adverse party is an assent to such admissions in that cause, and his client is bound thereby, and proof of the facts admitted is thereby waived.

Applying the above principles to the case now before the Court, it is very clear that when the Attorney-General at the trial stated to the Court in the presence and hearing of the counsel for the prisoner, the matters admitted by such counsel, it was then and there the duty of such counsel to speak if there was any fault made in the statement, and the failure then and there to so speak acted as an acquiescence in and an assent to the statement, and to an admission of facts contained in the statement binding on the accused. The conduct of the counsel in this respect and under these circumstances was the conduct of the accused. The circumstances were such as to offer counsel an opportunity to speak and also such as would properly and naturally call for some reply from men similarly situated. Silence alone, under such circumstances, is binding and the accused, the appellant, is held to have admitted to be true all the facts which the Attorney-General stated...