State v. Fogg

• Decision Date: 06 February 1923
• Docket Number: No. 1851.,1851.
• Court: New Hampshire Supreme Court
• Parties: STATE v. FOGG.

119 A. 799

STATE

v. FOGG.

No. 1851.

Supreme Court of New Hampshire, Rockingham.

Feb. 6, 1923.

Transferred from Superior Court, Rockingham County; Branch, Judge.

Stanley Fogg was convicted of embezzlement. Transferred on defendant's exceptions. Exceptions overruled.

Indictment for embezzlement. Trial by jury. Verdict guilty. Transferred by Branch, J., upon the respondent's exceptions to statements of the state's counsel in opening and in argument, to the exclusion of evidence, and to remarks of the court made in the course of a ruling thereon.

Jere R. Waldron, Sol., of Portsmouth, and Oscar L. Young, Atty. Gen. (Mr. Waldron, orally), for the State.

Sleeper & Brown, of Exeter (William H. Sleeper, of Exeter, orally), for defendant.

SNOW, J. The respondent was indicted for failure to account to his employers, retail grain merchants, for moneys received in payment for goods delivered by him to a number of customers. The defendant excepted to the following passage in the opening statement of the state's counsel:

"And directly after that a Brodrick * * * account showed up * * * that had been paid, and so * * * the bookkeeper then went to Mrs. Brodrick, and Mrs. Brodrick told her, as she will tell you here, that she had paid that."

The ground of the exception is the incompetence as evidence of the statement made by Mrs. Brodrick to the bookkeeper. The essential fact that Mrs. Brodrick paid the respondent for the goods was supported by the testimony of Mrs. Brodrick, who was produced by the state as a witness. It is improbable that the statement objected to, which was merely incidental and introductory to an offer of competent evidence, could have influenced the jury. A verdict will not be set aside because of the statement by counsel of an immaterial fact which has no tendency to confuse or prejudice the jury. Davis v. Sanders, 11 N. H. 259, 263; Swamscot Machine Co. v. Walker, 22 N. H. 457, 465, 55 Am. Dec. 172; Cook v. Brown, 34 N. H. 460, 470; Winship v. Enfield, 42 N. H. 197, 211; Rowell v. Hollis, 62 N. H. 129, 131; Parker v. New Boston, 79 N. H. 54, 56, 104 Atl. 345; Williams v. United Box & Lumber Co., 80 N. H. 137, 139,

114 Atl. 817.

One of respondent's employers, Mrs. Nason, upon whose information the original complaint was made, was a witness for the state. Upon cross-examination, counsel for the respondent sought to impeach her credibility and to establish a motive for his prosecution by showing her hostility toward him arising from the fact, as he claimed, that he had refused to be a witness for her in a pending libel for divorce. During the course of the cross-examination, the respondent excepted to the exclusion of the question:

"And at one time, have you in mind trying to get Mr Fogg to secure some evidence for you from a certain young girl in Exeter?"

The witness had admitted conversation with respondent as to her divorce case in which he had volunteered to her some facts, but denied that she had sought information of him or asked him to testify in her behalf. No evidence had been submitted tending to show that the respondent had been requested, or had refused, to be her witness. The extent to which cross-examination may be carried to disparage the credibility of a witness is a question of fact to be determined at the trial. Gutterson v. Morse, 58 N. H. 165, 166; Plummer v. Ossipee, 59 N. H. 55, 58; Merrill v. Perkins, 59 N. H. 343, 345; Guertin v. Hudson, 71 N. H. 505, 508, 53 Atl. 736; Benoit v. Perkins, 79 N. H. 11, 18, 104 Atl. 254; State v. Foster, 80 N. H. 1, 4, 113 Atl. 211.

Upon further cross-examination, the witness, while admitting that she had talked with the respondent in regard to being a witness for her, denied that he had ever refused, upon which the following question and answer were received:

"Q. And you considered that he would be a very valuable witness to you? A. Circumstantial evidence only."

Upon objection by the state's counsel, the court by way of ruling said:

"Well, she said Fogg never refused to testify for her. Now, it seems to me that that takes away the point from any evidence of that kind at present. Fogg may testify to something else later."

To which counsel for the respondent stated, "I will take exception to that." Under this exception, counsel in brief and argument sets up error of the trial court (1) in unreasonably limiting the cross-examination as to the credibility of the witness, and (2) in unfairly challenging the defendant to show the witness' untrustworthiness by his own testimony. Under the authorities hereinbefore cited, the limitation of the cross-examination in such a case was within the sound discretion of the trial justice. The ruling seems to have been sufficiently favorable to the respondent in allowing the question and answer to remain in the record and in declaring this field of inquiry open to him when and if evidence justifying such line of inquiry should later be submitted. The record does not show that the court denied the respondent the privilege of further examining the witness upon the issue of her credibility by questions justified by the evidence.

As to the second specification of error under this ruling, a more difficult question might have arisen had the respondent not taken the witness stand in his own behalf. The Constitution provides that no subject shall be compelled to furnish evidence against himself. Bill of Rights, art. 15. "In the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes and offenses, the person so charged shall, at his own request, but not otherwise, be a competent witness. Nothing herein contained shall be construed as compelling any such person to testify, nor shall any inference of his guilt result if he does not testify, nor shall the counsel for the prosecution comment thereon in case the respondent does not testify." P. S. c. 224, §§ 24, 25. The design of this statute was to enlarge the rights of the accused by making him a competent witness at his own election, and the purpose of the protecting provisions was to prevent an unfair inference to be drawn in case of his failure to exercise his privilege. If the accused does not elect to testify, the statute protects him not only from adverse comment by counsel but from inferences of guilt by reason of his silence. But if he avails himself of the statutory privilege, he waives the constitutional protection in his favor, and subjects himself to the rules applicable to other witnesses. State v. Ober, 52 N. H. 459, 463, 13 Am. Rep. 88; State v. Sterrin, 78 N. H. 220, 222, 98 Atl. 482. In that case, he makes himself a competent witness to testify to any facts relevant and material to the issue (Comm. v. Mullen, 97 Mass. 545, 546), subjects himself to impeachment as a witness (...