State v. Ryder

• Decision Date: 16 January 1908
• Citation: State v. Ryder, 80 Vt. 422, 68 A. 652 (Vt. 1908)
• Parties: STATE v. RYDER.
• Court: Vermont Supreme Court

68 A. 652

80 Vt. 422

STATE

v. RYDER.

Supreme Court of Vermont. Brattleboro.

Jan. 16, 1908.

Exceptions from Windham County Court; William H. Taylor, Judge.

James M. Ryder was convicted of attempting to procure a miscarriage, and he brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

R. C. Bacon, State's Atty. Senter & Senter, for respondent.

ROWELL, C. J. This is an information for the statutory crime of employing means with intent to procure the miscarriage of a pregnant woman, the same not being necessary to preserve her life, and who died in consequence thereof. The prisoner lived in Bellows Falls; the woman, in Proctorsville. The state claimed, and its evidence tended to show, that the deceased arranged with the prisoner by mail for the operation; that he sent her two letters concerning the matter, one of which she received the evening before she went to Bellows Falls to meet him; and that the next morning she burned two letters, one of which was signed "Doc," and both of which the state claimed were written by the prisoner. The witness who proved the destruction of the letters testified that when the deceased destroyed them she said she was going to burn them because her sister might get hold of them. The prisoner now objects that this is hearsay, and nothing more. But we think that the declaration was admissible as a part of the act of destroying the letters, pars rei gestæ proof of their destruction being competent for the purpose of laying the foundation for secondary evidence of their contents. The declaration accompanied the act, was calculated to explain and elucidate it, and was so connected with it as to be a part of it, and to derive some degree of credit from it. In such cases the credit that the act gives to the accompanying declaration as a part of the transaction, and the tendency of the declaration to explain the act, distinguish this class of declarations from mere hearsay. Such declarations derive credit and importance as forming a part of the transaction itself, and are included in the accompanying circumstances, which may, as a rule, be given in evidence with the principal fact. But there must be a principal fact or transaction, and only such declarations are admissible as grow out of it, illustrate its character, are contemporaneous with it, and derive some degree of credit from it. Lund v. Inhabitants of Tyngsborough, 9 Cush. (Mass.) 36; Waldele v. New York Central R. R. Co., 95 N. Y. 274, 47 Am. Rep. 41; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049; Steph. Dig. Ev. (Chase's Ed.) 8, note 3; Thayer's Prel. Treat. Ev. 521, 523.

The state offered to show the pregnancy of the deceased by her declarations. The prisoner objected that they were not evidence against him, but said, if it was the purpose of the state to connect him with it, he did not object. The state said that it was its purpose to connect him with it at the other end of the journey, and thereupon the evidence was admitted, and the prisoner excepted. The witness testified that the deceased told him she was pregnant, and had arranged with the prisoner by mail to help her out of her predicament, and asked the witness to get her $35 with which to pay him. It is contended that what the deceased told the witness about having arranged with the prisoner to help her out of her predicament was mere narrative, and therefore inadmissible. But the exception was general, and went to the whole testimony, whereas that part of it that came strictly within the offer, namely, what the deceased said about being pregnant, was not objected to, as the state subsequently connected the prisoner as it said it would. The exception, therefore, is too large to be available.

The state offered secondary evidence of the contents of the letter signed "Doc." The prisoner objected that there was nothing to connect him with the letter. The objection was overruled, and the testimony admitted, which showed that the letter read: "Come to Bellows Falls Tuesday next on the noon train, and I will meet you at the depot. I will remove that tumor for you, and you will be able to go home on the evening train. Be sure and bring thirty-five dollars with you."

The prisoner claimed, and his testimony tended to show, that he was unacquainted with the deceased, and never saw her till the day on which, by arrangement made by mail, she was to come to...