State v. Slack

• Decision Date: 17 July 1897
• Citation: 69 Vt. 486,38 A. 311
• Parties: STATE v. SLACK et al.
• Court: Vermont Supreme Court

38 A. 311

69 Vt. 486

STATE

v. SLACK et al.

Supreme Court of Vermont. Windsor.

July 17, 1897.

Exceptions from Windsor county court; Munson, Judge.

Frank P. Slack and Romeo Clough were convicted of assault with intent to rob, and they except. Exceptions overruled.

J. G. Harvey, State's Atty., and W. W. Stickney, for the State. G. A. Davis and D. A. Pingree, for respondent Slack.

W. E. Johnson and Wm. Batchelder, for respondent Clough.

ROWELL, J. The state, in its opening, called Orson Sargent as a witness, to prove flight The prisoners called him in defense, to prove innocence. On cross-examination, to impeach him, the state was allowed to ask him if he was not convicted in the United States circuit court for selling liquor without a license, and he said he was not; that he settled it, but could not tell just how it was done. The state was also allowed, for the same purpose, to introduce a copy of the record of his conviction in 1883 for selling liquor contrary to law, and to prove by him that he was the person convicted. Before said copy of the record was offered, and Sargent inquired of concerning it, the prisoners, on cross-examination of the state's witness Armstrong, had shown by him, without objection, that he had been convicted at that term of selling liquor contrary to law. They had also offered in evidence a copy of the record of his conviction of a similar offense at Norwich, which was objected to, but admitted. It was competent for the prisoners to show by Armstrong, as they attempted to do, and nearly, if not quite, did, as tending to show that he had a grudge against them, that he knew that they, or one of them, testified against him before the grand jury when he was indicted for selling liquor; and, as no objection was made, they properly enough went further, and perhaps could have any way, and showed his conviction, as that would naturally tend to displease him still more. Counsel for the state probably regarded it all as admissible for the purpose indicated, and so did not object to it. But the same cannot be said of the conviction at Norwich. That was objected to, and it does not appear that the prisoners, or either of them, had anything to do with procuring it; so evidence of it could have been offered and received only for the purpose of impeaching Armstrong because of the conviction. After this was done under objection, the principal question is whether the prisoners can object to the state's impeaching Sargent in the same way, provided it could impeach him at all. They say that the state could not impeach him at all, save as allowed by statute, because it first called him, wherefore he was its witness throughout. This is the general rule, but the question is whether it is applicable to the state in a criminal case. As reason is the soul of the law, the maxim is that when the reason of a law ceases the law itself ceases; or as Willes, C. J., puts it in Davies v. Powell, Willes, 46, referred to in argument in Morgan v. Earl of Abergavenny, 8 C. B. 786, "when the nature of things changes, the rules of law must change too." Now, the reason of the rule that a party cannot impeach his own witness is that by calling him in proof of his case he represents him to be worthy of belief, and that to attack his general character for truth after that would be not only bad faith to the court, but, in the language of Buller, would enable the party to destroy him if he spoke against him, and to make him a good witness if he spoke for him. But cases of what are called "instrumental witnesses" do not come within the rule,—certainly not fully, if at all; for there the reason of the rule fails, as the law compels the party to call such witnesses, and therefore they are the witnesses of the law rather than of the party, and it would be absurd to say that the party accredits a witness whom the law compels him to call,—as absurd as Chief Justice Willes said, in the case referred to, it would be to hold that deer were not distrainable when they had become a sort of husbandry, as horses, cows, sheep, and other cattle, because formerly they were not distrainable, as they were kept for pleasure, and not for profit, and were not sold and turned into money as they were then. In Thornton's Ex'rs v. Thornton's Heirs, 39 Vt. 122, where it was held that a party calling a subscribing witness to prove a will could impeach him by showing prior contradictory statements, as the law compelled the party to call him, the court said that many, but not all, of the reasons for permitting that kind of impeachment, applied to an impeachment of a general nature, but that the authorities had in many instances made a clear distinction between permitting an impeachment of the general veracity of a witness and an impeachment by showing declarations of the witness inconsistent with his testimony, but declines to express an opinion as to the soundness of the distinction, but says that the fairness of holding a party estopped by reason of an act concerning which he has no choice, or by an indorsement that he does not make of a witness whom the law calls and makes current whether the party indorses him or not, may well be questioned. This strongly tends against any such distinction as the court says some of the cases make, and we think no distinction can logically be made; for the same reason that makes the rule inapplicable to one mode of impeachment makes it equally inapplicable to all modes, as the different modes are but different ways of doing the same thing, namely, discrediting the witness, and they are equal in degree and alike in essence. The reason of the rule does not fail in part and stand in part,—fail as to one mode of impeachment, and stand as to another mode. It is indivisible, and stands or falls as a whole. This view is sustained by Williams v. Walker, 2 Rich. Eq. 291. There, in tracing the complainant's title, it became necessary to prove a mortgage. His solicitor stated to the court that the character of the attesting witness was such as not to entitle him to credit, and proposed...