State v. Marsh

• Decision Date: 03 March 1898
• Citation: 70 Vt. 288,40 A. 836
• Court: Vermont Supreme Court
• Parties: STATE v. MARSH et al.

40 A. 836

70 Vt. 288

STATE

v. MARSH et al.

Supreme Court of Vermont. Washington.

March 3, 1898.

Exceptions from Washington county court.

Isabella A. Marsh and William C. Buzzell were convicted of murder in the first degree, and they bring exceptions. Overruled.

The respondents moved for separate trials, but the motion was denied, and they were tried together. In impaneling the jury, the state having peremptorily challenged six jurors, and each respondent three, the state claimed the right to further challenge peremptorily, which was allowed, to which both respondents excepted, claiming that the state had a right peremptorily to challenge only six. The state subsequently peremptorily challenged five more. After each respondent had peremptorily challenged six, they claimed that, as the state had been allowed to challenge the additional five, thereby so many men had been excluded from the panel that they were entitled to have sit, and their places filled with men whom they desired to challenge, but could not, because their challenges were exhausted; and therefore they claimed the right to further peremptorily challenge, which was denied them, to which they both excepted. The respondents offered to show by Lyman Farrar, a peddler, of whom the deceased had bought many medicines, that in a conversation between the witness and the deceased the witness advised him that he was taking too much medicine, and the deceased had replied that he had taken poison enough to kill 40 men. This was a considerable time before the last illness. The offer was excluded, and the respondents excepted. The respondents offered to show by H. S. Fuller that in 1893 Fuller had an old horse, and Marsh advised him to give it some of his (Marsh's) powders, and told him the different ingredients, including arsenic, and said that arsenic was good to fatten an old horse; that Fuller said he should think it would kill the horse, and Marsh said, "No; give him small doses to begin with, and Increase them." The testimony was excluded, and the respondents excepted. It became material for the state to show that the respondents slept together the next night after Marsh died. The state called Harry Marsh, a lad, son of the deceased, who testified that his mother stayed that night in the bedroom downstairs, in which his father died, that he saw the respondent Buzzell go into the bedroom that night, and that he himself and the other boys slept upstairs. He was then asked if he knew where Buzzell stayed that night, and answered, "I think I do." He was then asked what he knew about it, whereupon the respondents' counsel objected that the examiner should find out whether the witness knew before he asked him. Thereupon the examiner asked him if he knew anything about where Buzzell stayed that night, and he answered: "Yes; I think he stayed in the bedroom." Respondents' counsel then said they desired an exception. The court asked the witness what made him think so, and he answered, "Because there was no other bed set up downstairs." He also stated that he thought he did not see Buzzell again that night after he went into the bedroom. The court then told the jury that the answer, "I think he stayed in the bedroom," was not responsive to the question, and was not admissible testimony, and must not be considered by them; that the respondents' counsel excepted to the answer, and it was excluded and stricken out. The court then allowed the exception, so far as it might be availing under the law.

W. A. Lord, W. P. Dillingham, and C. D. Edgerton, for respondents.

Zed S. Stanton and Frank Plumley, for the State.

ROSS, C. J. The respondents were indicted and tried on the charge of having murdered George Marsh, the husband of the respondent Marsh, by means of arsenical poison, on January 29, 1896. On the trial several exceptions were taken which the respondents' counsel have not urged in their brief, nor in their argument, but say that they do not waive them. The court has examined these exceptions, but, as it has discovered no error in the proceedings of the trial court in regard thereto, these exceptions will not be further considered in this opinion.

1. The exceptions taken in regard to allowing the state the same number of peremptory challenges which by law is allowed to both respondents are fully considered and decided in the recent decisions of State v. Noakes, 70 Vt. —, 40 Atl. 249. These exceptions are not sustainable.

2. The respondents were permitted to show by William H. Dillingham that in the fall of 1895 George Marsh told witness that "he was giving his horse arsenic for worms; that he put it in his oats, beginning with small doses, and increasing them." This was offered to show that he was acquainted with the use and character of the drug, and also to show that he then had it in his possession. It was excluded for the purpose last named, against the exception of the respondents. The state gave evidence tending to establish that the deceased came to his death by arsenical poison criminally administered by the respondents. The respondents contended that, if his death was caused by arsenical poison, such poison was procured and taken by the deceased for the purpose of destroying his life. They gave evidence tending to show that he at times contemplated self-destruction. They contend that, inasmuch as the establishment of self-destruction in this manner includes the establishment that he had arsenic in his possession, such possession was a part of the res gestae, and could be established by the declarations of the deceased. They rely, to support this contention, on several citations from authorities, and especially upon the decision of this court in State v. Howard, 32 Vt. 380. In that case the deceased, with her twin sister, went from Sutton to Bradford, where the respondent, who was a physician, lived, and at whose house the deceased died. The twin sister was allowed to testify, against the exception of the respondent, who was on trial for causing the death of the deceased by procuring upon her an unjustifiable abortion: "I and she supposed her to be pregnant; and she left Sutton to get an abortion procured, as was understood between us at the time we left." This court, in disposing of this exception, said: "The declarations of Olive Ash as to the purpose of the journey in going to the respondent's were properly admitted as a part of the res gestæ. The mere act of going was equivocal. It might have been for professional advice and assistance. The declarations were of the same force as the act of going, and were admissible as a part of the act." We do not question the soundness of this decision. The declarations of the deceased to her sister characterized the journey. The journey was admissible to bring the deceased to the residence of the respondent. In the case under consideration the declaration of the deceased characterized no act which was shown to have any connection with his death by his own hand, nor by the hands of the respondents. The declaration shows that he then—some two or three months before his decease—was feeding arsenic to his horse. It does not declare that he had it in any particular quantity. It does not tend to show that he had it with a purpose of using it to destroy his own life, nor that he was keeping it for that purpose. The tendency of the declaration is to show that he was using up whatever arsenic he then had, and it has no tendency to show that he kept it and used it for his own destruction. There is nothing in the declaration relevant to the issue on trial as claimed by the state, nor as claimed by the respondents; nor does it explain any principal fact under investigation. Declarations which are admitted as original evidence, says Mr. Greenleaf in his work on Evidence (volume 1, § 108), "are distinguished from hearsay by their connection with the principal fact under investigation. The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. These surrounding circumstances may always be shown along with the principal fact." Declarations, to become a part of the res gestae, must have been made at the time of the act done which they are supposed to characterize, and must be well calculated to unfold the nature and quality of the facts they are intended to explain, and so harmonize with them as obviously to constitute one transaction. Enos v. Tuttle, 3 Conn. 250; State v. Pournier, 68 Vt. 262, 35 Atl. 178. If the declaration has its force by itself, as an abstract statement, detached from any particular fact in question, depending for its effect on the credit of the person making it, it is not admissible in evidence. Such a declaration is hearsay, and no more. Lund v. Inhabitants of Tyngsborough, 9 Cush, 36; Steph. Dig. Ev. (Chase's Ed.) arts. 3, 11, notes and illustrations; Barnum v. Hackett, 35 Vt. 77. On these principles the declaration of the deceased, for the purpose of establishing that he then had arsenic in his possession, was clearly hearsay, and subject to the infirmity of that class of evidence. The fact that he then had arsenic in his possession for the purpose declared, if proven by competent testimony, with nothing more shown in regard to it, would have no legitimate tendency to establish that the deceased had it at the time of his final sickness, nor that he used it to produce it. It might raise a conjecture in a speculative mind, but not a probability in a reasonable one, that he had it and used it at the later date. The declarations of the deceased, offered to be shown by Lyman Farrar, and excluded by the court, were properly excluded, under the principles already stated. So, too, was the testimony offered that the witness purchased arsenic for the deceased in 1892. There was no testimony offered in connection with it tending to show that the deceased kept or had it, so he could have used it to produce his last sickness. The...