State v. Slocinski

• Decision Date: 01 February 1938
• Citation: 197 A. 560
• Parties: STATE v. SLOCINSKI.
• Court: New Hampshire Supreme Court

197 A. 560

STATE

v. SLOCINSKI.

Supreme Court of New Hampshire. Hillsborough.

February 1, 1938.

On Rehearing February 8, 1938.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Roman W. Slocinski was convicted on indictment for arson. Transferred to the Supreme Court on exceptions to the admission and exclusion of evidence and to the allowance of argument.

Exceptions overruled.

Indictment, for arson. The jury found the defendant guilty. Transferred by Young, J., on exceptions to the admission and exclusion of evidence and to the allowance of argument. The opinion states them, with the facts relative thereto, so far as necessary.

Thomas P. Cheney, Atty. Gen., Frank R. Kenison, Asst. Atty. Gen., and Jennie Blanche Newhall, of Concord (Mr. Kenison, orally), for the State. Osgood & Osgood, of Manchester (Anson G. Osgood, of Manchester, orally), for the defendant.

ALLEN, Chief Justice.

I. A church society owned the property burned, subject to mortgages on it amounting to $4,620. The defendant had extensive control over the finances of the society, and was "accountable only in equity for any default." The property carried $9,000 of fire insurance. The defendant was personally in debt to a substantial amount. The state claimed that he set the fire to obtain part of the insurance money, and was allowed to introduce evidence that he made a payment towards the unpaid premiums for' the insurance the day before the fire.

The evidence was competent on the issue of motive. It tended to show that the insurance was a matter of thought and attention immediately before the fire. The fact that the insurance was then already in force did not make the evidence irrelevant. It would be natural for the defendant to consider the insurance more secure with payment for it made, although in fact no gain in the security was thereby made. The evidence tended to show a step in his plan thought by him to be of possible service to meet any claim that the insurance was not in good standing.

II. In denial of motive the defendant took the position that for him to benefit from the fire a total fire loss was necessary. Evidence that the property was in an area where other fires had resulted only in partial losses was properly excluded on the ground of remoteness. As the trial justice observed, it opened up many things and "would be quite far afield." Moreover, it was conjectural whether the defendant was aware of the experience in the area that none of its fires were of total loss. And furthermore, the insurance of $9,000 was payable in case of loss to meet the mortgage indebtedness only to the extent of $2,500.

III. A witness testified to a threat by the defendant to burn the property in a talk with him nearly a year before the fire. Subject to exception, the witness was then permitted to testify that after the defendant's arrest for setting the fire he informed the police of the threat. The exception was on the ground that the evidence was incompetent, prejudicial, and hearsay, and was "a self-justification before any attack is made on the witness' credibility." The evidence was offered on the stated ground that it would show "the circumstances by which this information" of the threat "was obtained" by the police. Except as the charge may have limited its use, it was in the case with no restriction of use.

It is not clear whether the reason advanced at the trial by the county solicitor for introducing the testimony implied its bearing on any issue other than that of the collateral one of the credibility of the witness. If it did, no competency for it on any other issue is perceived, and none has been argued in behalf of the State. The manner in which information of the threat came to the police is irrelevant. Explanation how the witness was found served no purpose in any way, as long as no claim was asserted of impropriety which led to producing him. As the matter stood, no suspicion could be thrown upon his presence as a witness. His presence and testimony could not, alone, indicate discreditable methods on the part of the prosecution or its agencies. There was no occasion to show that in calling the witness their hands were clean. They did not stand otherwise, even doubtfully. The testimony of the threat was materially helpful on the issue of malice, but the importance of the testimony invoked no inference of a lack of integrity in presenting it.

Upon the assumption that the testimony excepted to was received to show the truth of the witness' direct evidence of the threat, the general rule is that extrajudicial statements of a witness to the same effect as his testimony are not competent evidence on the issue of the truth of his testimony unless to combat impeaching evidence of statements inconsistent with the testimony. "His testimony under oath would have gained no legal corroboration from his having said the same thing when not sworn, and not subject to cross-examination." Burns v. Stuart, 168 Mass. 19, 46 N.E. 399. The rule is so strongly established as to be- almost axiomatic and is so firmly established as usually to be taken for granted. It received terse approval in Barker v. Barker, 16 N.H. 333, 339, in this language: "nor did he * * * bring himself within any exception to that general rule which precludes a party from supporting his cause by giving evidence of his own sayings." While the reference is to a party's testimony, the reasoning extends to that of any witness, as appears in State v. Winkley, 14 N.H. 480, 493, where it is said: "When the credit of a witness has been impeached by proof that in a certain conversation he has made statements inconsistent with the truth of his testimony, he may on his reexamination state what that conversation was. * * * This view of the case, and it appears to us to be a sound one, avoids the objection which exists to proving that the witness has made statements at other times similar to his testimony, and thus fortifying his testimony by his declarations made out of court." A rule admitting prior statements consistent with the testimony before any impeachment "is rejected by all courts." Wigmore, Ev., 2d Ed., § 1124. The reasons for the rule, to exclude untested evidence of slight probative value, to avoid issues respecting such evidence, and to lessen the chances of false testimony, have such practical merit of expediency as fully to justify the uniform...