State v. Flint
| Decision Date | 29 May 1888 |
| Parties | STATE v. JOHN C. FLINT |
| Court | Vermont Supreme Court |
JANUARY TERM, 1888 [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
INDICTMENT for burglary. Trial by jury, June Term, 1887, ROWELL, J., presiding. Verdict, guilty. Exceptions by the respondent.
The judgment is that there is no error in the proceedings of the County Court, and that the respondent takes nothing by his exceptions, and that he be sentenced upon the verdict.
Henry Ballard, for the respondent.
Present: ROYCE, Ch. J., ROSS, POWERS and VEAZEY, JJ.
I. Respondent's counsel insist that it was error for the court to allow the counsel for the State to ask the jurors whether the fact, that a witness produced by the State who participated in the commission of the crime for which the respondent was on trial, would cause them to disregard such witness' testimony.
It is plain that if a juror had such a settled view of his duty that he would wholly disregard such a witness' testimony on that account, he would not be a suitable man for a juror. It being legal evidence in the case, the trier is bound to regard it. He is not bound to believe any witness. An accomplice's testimony is to be weighed for what it is worth, like that of other witnesses. It may not be believed, but it can not be wholly disregarded.
The propriety of such inquiry must rest largely in the discretion of the trial court. This case illustrates such necessity. It had been tried twice without an agreement; it was known that the State's case depended on the testimony of an accomplice to such an extent that without his testimony a conviction would not be warranted; it is not uncommon to hear men say they would not believe an accomplice in any case. Should a court under such circumstances be powerless to find out whether the jurors were so mentally constituted that they could not try the case according to their oath? We think the ruling was clearly correct.
II. There was no error in the ruling in respect to peremptory challenges. The statute allows six peremptory challenges to the respondent in a criminal case and two to the State, but makes no provision as to the order in which they shall be exercised. In many states this is discretionary with the trial court. See cases in plaintiff's brief. And I apprehend this is the rule to which all courts must come when the order is not regulated by statute. Grave objections will occur to any arbitrary rule, either statutory or judicial. But until an arbitrary rule is made, the ruling must rest in discretion. This is shown in this case. The court below made a rule for the order of challenges in the case, to which exception was taken. We hold there was no error. Why? Not because there is any settled rule regulating the matter pursuant to the order adopted, but because it was fair, and because a respondent can never justly complain of a rule as to the order of peremptory challenges which leaves him a satisfactory panel before his peremptory challenges are exhausted. Strictly, this court only says that the County Court exercised sound judicial discretion, which is practically saying that the question rests in discretion. I should therefore say so in terms. I believe that the "impartial jury," which the Constitution of the State says the accused person is entitled to, is more likely to be obtained under the rule of discretion than by any arbitrary rule as to the order of peremptory challenges which either the legislature or the courts can make. But this case does not necessarily call for a decision beyond the point that we find no error available to the respondent under this exception.
III. We hold that the ruling was correct under which proof was received as to the testimony of the witness Whitton on one of the former trials.
It is a well established rule that proof of declarations made by a witness out of court in corroboration of testimony given by him at the trial is inadmissible. But with this rule there has come an exception which exactly applies to this case. It is stated in one form by BRONSON, J., in Robb v. Hackley, 23 Wend. 50: "If an attempt is made to discredit the witness, on the ground that his testimony is given under the influence of some motive prompting him to make a false and colored statement, the party calling him has been allowed to show, in reply, that the witness made similar declarations at a time when the imputed motive did not exist." In Greenleaf on Evidence, sec. 469, the author states the rule thus: "But evidence that he has on other occasions made statements, similar to what he has testified to in the cause, is not admissible; unless where a design to misrepresent is charged upon the witness, in consequence of his relation to the party, or to the cause; in which case, it seems it may be proper to show that he made a similar statement before that relation existed." See also Stephen's Dig. Law of Ev. Art. 131, note and cases there cited; 2 Phil. Ev. 445; Bull. N. P. 294; 1 Stark. on Ev. 187, marg. p.; Conrad v. Griffey, 11 HOW 480, Bk. L. ed. 779, note and cases therein cited. The attempted impeachment here was based on the changed relation of the witness to the party.
IV. The objection to the testimony of Jones, Smith and Dunham, was that it did not appear that they had travelled over this route under the same circumstances and conditions as when travelled over by Blair and his accomplice, whom he charged to be this respondent.
The terminal points were known and the intervening country was described. Blair also testified to the circumstances of the crime and the delays in going and returning. The testimony tended to show the time of departure and return; it was material to know whether the intervening time was adequate. An experiment showing that it was practicable to make the trip in the time would furnish some aid on the point. The distance was the same in both cases; dissimilarity in other conditions would go to the weight of the evidence, but would not render it wholly irrelevant. If the distance had been so great that it could not be accomplished in the time given by Blair, the respondent clearly could have shown that fact by experiment, as it would have weakened, if not nullified, Blair's testimony. Hence the State could show the converse. The exception is not well taken.
V. Without the evidence objected to under the fifth exception the case of the State had this weakness: It could be well claimed, as it was in substance, that Blair's testimony as to what the respondent said to him about making masks from black pieces of cloth in a trunk in his room was made up from information that came to him from some late source, about the officers having found such cloth in a trunk in respondent's room. This was the posture of the case upon the testimony of Blair, the accomplice. The State then proceeded to show that neither the discovery of the black cloth in the trunk, nor anything relating to it, was communicated to Blair until after he gave his testimony in the court of examination.
Now in this attitude of the evidence and under this claim of the respondent, if the fact existed that Blair had knowledge about this cloth, before or at the time of the examination before the justice, which was within...
To continue reading
Request your trial