State v. Smith

• Decision Date: 11 May 1899
• Citation: 45 A. 219,71 Vt. 331
• Parties: STATE v. SMITH.
• Court: Vermont Supreme Court

45 A. 219

71 Vt. 331

STATE

v. SMITH.

Supreme Court of Vermont. Washington.

May 11, 1899.

Exceptions from Washington county court; Russell S. Taft, Chief Judge.

Arthur J. Smith was convicted of keeping a liquor nuisance, and he excepts. Affirmed.

There was testimony in the case tending to show that a warrant was issued, and the premises searched for intoxicating liquors, and that liquors were found on the premises, and that at the time of the seizure the respondent, with several others, some of whom were named by, and others were unknown to, the witnesses, were present on the premises. The owner of the building, or the one having control of the same, was not summoned; nor was any proof offered by the state to show who was the lessee or in control. Counsel for the respondent claimed the right to argue to the jury that it was the duty of the state to summon all witnesses,—especially those whose testimony could establish the facts as to who was the lessee and had control of the premises,—and that the failure of the state to produce such testimony was to be weighed against it. The court ruled that no presumption was to be drawn against the state because it did not bring witnesses, when such witnesses were equally within the reach of both parties.

Fred A. Howland, State's Atty., for the State.

Lord & Carleton, for respondent.

START, J. In passing upon the questions reserved in the court below, it becomes necessary to consider when and under what circumstances an inference unfavorable to a party may be drawn from his failure to produce other witnesses. It may be stated as a general rule that when it appears that evidence is peculiarly within the knowledge and reach of one party, and not the other, an inference unfavorable to the party having such knowledge, and to whom the evidence is peculiarly available, may be drawn from his failure to produce such evidence. Applying this rule to the facts shown by the exceptions, it is clear that an inference unfavorable to the state could not be drawn from its failure to produce as a witness the owner of the building in which the liquor was found, nor from its failure to produce as witnesses other persons who were in the building. We cannot assume that the knowledge of these persons was peculiarly the knowledge of the prosecution, nor that they were peculiarly within its reach; and, in the absence of any showing upon this subject, the ruling of the trial court, that no presumption was to be drawn against the state because it did not produce witnesses, when such witnesses were equally within the reach of both parties, is presumed to have been justified by the evidence. While it is held in some cases that it is the duty of the state in criminal trials to produce all witnesses within reach of process, whose testimony will shed light upon the transaction, its failure to do so does not justify an inference unfavorable to the state, when the witnesses are equally available to both parties. State v. Fitzgerald, 68 Vt. 125, 34 Atl. 420; State v. Harrison, 66 Vt. 523, 29 Atl. 807; State v. Slack, 69 Vt. 486, 38 Atl. 311; State v. Roberts, 63 Vt. 139, 21 Atl. 424; Arbuckle v. Templeton, 65 Vt. 205, 25 Atl. 1095; Scovill v. Baldwin, 27 Conn. 318.

The court, after instructing the jury that they were not to draw any presumption against the respondent because he did not go upon the stand and testify, in effect said: "The testimony tends to show that he was pretty constantly there,—in the room,—and that there were others with him at these times; and, if you believe that he could have shown by these witnesses that he was not the keeper of the room, and some one else was, you have the right to consider the fact...