State v. Bean

• Citation: 77 Vt. 384,60 A. 807
• Court: United States State Supreme Court of Vermont
• Decision Date: 13 May 1905
• Parties: STATE v. BEAN.

60 A. 807

77 Vt. 384

STATE

v. BEAN.

Supreme Court of Vermont. Windsor.

May 13, 1905.

Exceptions from Windsor County Court; Munson, Judge.

Joseph Bean was convicted of murder in the second degree, and he brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, START, WATSON, HASELTON, and POWERS, JJ.

Clarke C. Fitts, Atty. Gen., Herbert H. Blanchard, Ex State's Atty., Charles Batchelder, State's Atty., and John G. Sargent, for the State. Wm. B. C. Stickney, for respondent.

ROWELL, C. J. The prisoner is under conviction of murder of the second degree, for killing Ephraim Root on October 12, 1903. It appeared that Root lived at John Green's at the time of the homicide, and that the prisoner had made it his home there for about 18 years next before June, 1903. The state claimed, and its testimony tended to show, that Root had so ingratiated himself into the favor of Mrs. Green, John Green's wife, as to interrupt the prisoner's improper relations with her, and that the prisoner slew him to get rid of him.

Chatfield, a witness called by the state, told of a trip to Rochester that he made with the prisoner one day in the fall of 1903, and testified that in the course of the journey they went to the depot, and was then asked where they went next, and answered, subject to exception, that he went to the doctor's, but that the prisoner did not go; that the witness got out at the corner, and the prisoner went along. The witness had testified that the prisoner had tried to get him to go to Green's as a detective, and told him there was a fellow staying there that the Green boys wanted to get out; that there had been a detective up there, but some one saw his badge, and he went away the next morning; that the witness declined to go. It is claimed that the testimony objected to was altogether immaterial, and, in view of the effort of the state to identify the witness with the prisoner, and to hold the prisoner responsible for the witness' actions, its admission was prejudicial, as tending to create a false issue and to mislead the jury. But the admission of immaterial evidence does not vitiate if it can be said not to have harmed the excepting party, and this testimony was so completely without significance that it is clear it could not have harmed the prisoner in the respects suggested or otherwise.

The witness further testified that he finally consented to go to Green's as the prisoner requested, and that on a Tuesday morning the prisoner took means to get some money for him to go with; and, subject to exception, he said that he received an order for $3 from Mr. Belden by the prisoner's direction, given in the witness' presence. It is objected that this was error, for, although it may have been permissible for the state to show the employment of the witness, and that he was paid by the respondent, the details were immaterial, and tended to divert the minds of the jury from the main issue and to prejudice them against the prisoner. But as the obtaining of the money was a part of the transaction of procuring the witness to go to Green's as a detective, it was proper to show the fact of obtainment by detailing the manner of it. This is not like excluding the details of a quarrel, to which it is likened, for there the only question is whether the witness is hostile to the opponent, not how it arose nor who was to blame; and as the details of the quarrel do not explain away the hostility, and may unfairly prejudice the opponent, they are not admitted. 2 Wig. Ev. § 952 (2).

The witness further testified that he went to Green's as the prisoner desired, and there said and did what the prisoner directed him to, and told what that was; that he there saw and talked with divers persons, whom he named, and among them Mrs. Green, from whom he received a letter that the prisoner wanted he should get, and which he read there, carried away, read to the prisoner, and gave to him, telling him all he had said and done. The letter was produced, and the prisoner admitted that he procured it to be written. To the witness' saying that he read the letter there, the prisoner excepted as immaterial and prejudicial. It is enough to say that the mere fact that the witness read the letter there—and to himself, it would seem—however immaterial, signified nothing, and could not have been harmful.

For the purpose of fixing the dates of certain transactions between the prisoner and the witness Chatfield, one Stockwell testified for the state that on September 29th he let Chatfield have $3, which he charged to Farr & Kennedy, and which was paid to him on October 3d. To the admission of this testimony the prisoner excepted as too remote. But whether testimony relevant in its nature is too remote in time or place is a preliminary question for the trial court, and will not ordinarily be revised. Dover v. Winchester, 70 Vt. 418, 41 Atl. 445; State v. Doherty, 72 Vt. 381, 390, 48 Atl. 658, 82 Am. St. Rep. 951. Nothing appears here that calls for a revision of that question.

The state introduced evidence tending to show that in the summer or fall of 1903 a stranger came to Mrs. Wiley's house, where Root lived before going to Green's, and stayed there two or three days, having no apparent business, but remaining in the house most of the time, apparently watching the premises, and particularly Green's house; and it was claimed that the prisoner procured this man to go there for the purpose of frightening Root and Mrs. Green, and thereby breaking up their intimacy, which, the state claimed, excited the prisoner's jealousy. The only evidence claimed to have any tendency to show the stranger's business was that of the prisoner's statements to various witnesses. To show the prisoner's connection with the alleged detective, and his motive and purpose to get Root out of the way, Mrs. Huntly, a witness for the state, testified, among other things, that the prisoner told her that he had met a detective, who offered him $50 to say anything against Mrs. Green's character; that he told the detective he knew nothing about her character, and should have nothing to say if he did; that he had been up to Mrs. Green's, and she asked him to say nothing about it, and cried, and told him they were going to make trouble for her and Root, and wanted him to put in money to help her; that he heard that Mrs. Wiley had a couple of detectives watching Root and Mrs. Green, and that, the first thing the witness would hear, there would be one of them killed; that he asked Mrs. Green why she did not send Root away, and she said that Root had always been a dog for everybody, and she should not turn him out for any one; that he told Mrs. Green that Root had made a good dog for her, and he should hate awfully to be in Root's boots; that there was jealousy between Mrs. Wiley and Root, and he thought there would be some trouble before they got done; that he knew nothing about Mrs. Green's character, only what Louis Lapan told him, which was that he caught Root and Mrs. Green in intercourse together. All of the testimony of this witness was excepted to generally, and that part about what the prisoner said Lapan told him was excepted to particularly, but no ground of exception was stated in either case. It did not appear whether Lapan did thus catch Root and Mrs. Green, nor whether he ever told the prisoner that he did. There is a general statement in the bill of exceptions that the relations between Root and Mrs. Green were the subject of neighborhood talk, but it does not appear that there was any exception to that line of testimony. The prisoner's brief mentions only the exception to that part of the testimony as to what the prisoner said Lapan told him. It then states what the bill says about evidence of neighborhood talk, and submits "that this rehearsal of neighborhood talk was immaterial and should not have been allowed," and makes no other objection. We take the objection to be to the admission of what the prisoner said Lapan told him, and to nothing else. As to this the rule is, when the declarations of a party are given in evidence against him, that all he said upon the subject at the same time must be received and weighed. Mattocks v. Lyman, 18 Vt. 98, 46 Am. Dec. 138; State v. Mahon, 32 Vt. 241. And the reason is because the thought as a whole, and as it actually existed, cannot be ascertained without taking the utterance as a whole, and comparing the successive elements and their mutual relations. To look at a part alone would be to obtain a false notion of the thought. The total and real meaning can be got at only by going on to the end of the utterance. One part cannot be separated and taken by itself without doing injustice by producing misrepresentation. 3 Wig. Ev. § 2094, p. 2821. This is like construing a written instrument, which you take by the four corners, and look at the whole and every part.

For the purpose of further showing the like motive and purpose on the part of the prisoner, Mr. Huntley was allowed to testify, under exception, that he met the prisoner one day, and spoke to him about a pair of horses of the prisoner's; that in answer to his inquiry the prisoner said the Greens had all seen the horses except Mr. Green, who was then in Canada; and that the prisoner then added that he supposed Root and Mrs. Green were going to Canada on a visit when Green got back; that he had heard they were, but did not know whether they would or not. It is objected that this addition was inadmissible, and had no bearing on any issue in the case. But we think it was admissible for the purpose for which it was offered. The prisoner went out of his way to say that which was susceptible of being thought to indicate that his mind was brooding on the relations between Root and Mrs. Green, which would strengthen the claim of the state in this respect.

A witness called by the state testified that a short time before Root was killed, be had a conversation with the...