State v. Ward

• Decision Date: 11 April 1889
• Citation: 17 A. 483,61 Vt. 153
• Parties: STATE v. THOMAS WARD
• Court: Vermont Supreme Court

17 A. 483

61 Vt. 153

STATE v. THOMAS WARD

Supreme Court of Vermont

April 11, 1889

GENERAL TERM, OCTOBER, 1888.

No error is disclosed by the record, the respondent takes nothing by his exceptions; the judgment is affirmed; sentence imposed upon the verdict and execution ordered.

All concur.

Bates & May, L. H. Thompson and Harry Blodgett, for the respondent.

OPINION

TAFT

1. This court held that it was not legal error to appoint as prosecutor in a criminal proceeding an attorney who was, at the time, acting as counsel in a civil suit against the respondent, to recover damages for the acts upon which the criminal action was based. Such appointment was within the discretion of the court below, and its exercise will not be revised by us. State v. Miller S.Ct. Wash. Co., May term, 1887.

2. It is contended that it was error to allow peremptory challenges by the State, for that the statute permitting them is in conflict with the Bill of Rights, s. 10, which guarantees to a respondent a trial by jury, which has been held, in State v. Peterson, 41 Vt. 504, to be a common law jury, and that at common law no peremptory challenges were allowed in behalf of the government. By the ancient common law the crown could challenge without limit but the "Ordinance for inquest," 33 Ewd. 1 Stat. 4 narrowed the challenges down to those for cause shown. "There was," said Lord Campbell, C. J., "no intention of taking away all power of peremptory challenge from the crown, while that power, to the number of thirty-five, was left to the prisoner." Mansell v. Rey., 8 El. & Bl. 54, 71. The effect of the statute was early mitigated by a rule of practice, not to compel the crown to show cause against the juror at the time of the challenge. The juror was directed to stand aside, and the defendant having completed his challenging, if a panel could be procured from the unobjectionable jurors remaining, these were selected, and it was only in case of a deficiency that the crown was called upon to show cause in respect to those members who had been directed to stand aside. As the court could direct the return of any number of jurors for the trial of a particular case, the crown practically was never deprived of the right in substance. This was the settled practice as early as 1699, Cowper's case, 13 How. St. Tr. 1108. While the crown could not insist upon the rule, as a legal right, and it was often questioned, it was said, by Buller, J., in O'Corgly's case, 26 How. St. Tr. 1240, that it was "as firmly and as fully settled on this point as any one question that can arise on the law of England," and since this time the practice has never been successfully questioned in England. Thus, at the time of the adoption of our constitution, the crown, in summoning, ad libitum, and standing aside, jurors, possessed all the advantages obtained by peremptory challenge. But were this not so, what the constitution guarantees is a trial by a common law jury, i. e., one of twelve impartial men, and it is within the legitimate scope of legislation to regulate the manner of selecting them and conducting the trial; nor, are we aware, has it ever been held otherwise. Walter v. People, 32 N.Y. 147.

3. At the request of the respondent, the court ordered "the witnesses examined separately and apart from each other." The respondent called as a witness one Carrick to prove an alibi. In rebuttal of his testimony, the State was permitted to use Mr. Stafford, an attorney of the court, as a witness; he had been present during the trial, and testified upon a matter to which no other witness was called. We think the case should fall within the rule stated by Royce, Ch. J., in State v. Hopkins, 50 Vt. 316, and reaffirmed in State v. Lockwood, 58 Vt. 378, 3 A. 539. It could not have been the intent of the rule to exclude from the courtroom an attorney whose duty to his clients might require his presence in the room at almost any time during the session, in the transaction of business with the clerk, and the other attorneys. The spirit of the rule could not be violated where the witness is the only one testifying upon the subject to which he is called. Such was the fact in this case, and the respondent could not have been injured by Stafford's presence in the court-room during the trial. In Georgia it has been held that if a witness remains in the court-room, under the rule, he is not thereby rendered incompetent, but may be proceeded against for contempt. Lassiter v. State, 67 Ga. 739. The following cases sustain the ruling below: Parker v. State, 67 Md. 329, 10 A. 219; Haskins v. Com., (Ky.) 1 S.W. 730; Leache v. State, (Tex.) 22 Tex. Ct. App. 279, 3 S.W. 539; Rummel v. State, (Tex.) 22 Tex. Ct. App. 558, 3 S.W. 763.

4. The respondent insists that the remarks made by Mr. Ide in his opening statement to the jury, were improper. Objection was made and exception taken after he had closed his remarks. The objection was made too late; it should have been made at the time of the statement, and the ruling of the court taken. The question, in this respect, is analagous to that of the introduction of illegal evidence without objection. The party against whom it is given cannot afterwards raise the question. This has been held to be the rule during the argument of the cause, much more should it obtain during an opening statement, when the jury are told by counsel, as they were in this case, that what he stated was not evidence. Com. v. Worcester, 141 Mass. 58, 6 N.E. 700; Willingham v. State, 21 Fla. 761.

5. Exception was taken to a part of the closing argument made by Mr. Ide for the prosecution. No objection was made to it at the time of its delivery, and we think, judging from the length and nature of the statements claimed to have been illegal, and the well-known vigilant character of the respondent's counsel, that none was intended. Where counsel sit still during an argument which they claim is illegal and make no objection thereto, an objection afterwards is too late. The exception is waived by their silence. This court sits in revision of errors made in the ruling, and the refusal to rule, of the court below. Upon this question the court made no ruling, did not refuse to make one, and therefore there is nothing for us to revise.

6. The respondent excepted to an offer to prove a certain fact, evidence of which was excluded. There is nothing in the case to show that the offer was made in bad faith, and in the absence of such showing we cannot hold that it was error to offer to prove such fact. The ruling was in favor of the respondent, and he ought not to complain of it.

7, 22. One witness was permitted to testify that the horse on the morning of the 27th of January appeared tired; another that, in his opinion, the track on the wall was made by an overshoe, and another that in his opinion the tracks in the snow were sleigh tracks. The point taken is that the witnesses testified to their opinions and not facts from which the jury could form opinions of their own. A witness is allowed to state appearances in any case where they are in their nature incapable of exact and minute description, e. g., the health or sanity of a person; the appearance of a person when charged with a crime and "where the facts are of such a character as to be incapable of being presented with their proper force to any one but the observer himself, so as to enable the triers to draw a correct or intelligent conclusion from them without the aid of the judgment or opinion of the witness who had the benefit of personal observation; he is allowed to a certain extent, to add his conclusion, judgment or opinion." Bates v. Sharon, 45 Vt. 474. Under this rule the evidence was properly admitted. See Crane v. Northfield, 33 Vt. 124, and see Stowe v. Bishop, 58 Vt. 498, 3 A. 494; Knight v. Smythe, 57 Vt. 529.

8. The buildings were burned on the 26th of January, 1886, and the evidence tended to connect the respondent with the burning. The State were permitted to show that an attempt was made to burn them four weeks prior to that time, but the respondent insists that there was no evidence tending to connect him with it. It had a tendency to show that he took a horse and left St. Johnsbury; that he went to Walden and returned, to the same place that he went to, at the time of the fire, but by a different route; this, with that tending to show a motive upon his part to commit the crime, had a tendency to connect him with the attempt, and if believed would be pertinent upon the question of whether he committed in January the crime which he attempted to commit the preceding month. Evidence of previous unsuccessful attempts to commit the same crime for which a respondent is on trial, is admissible. Com. v. Jackson, 132 Mass. 16. Evidence of previous threats to burn Foster's buildings would have been admissible, we think evidence of an attempt to carry such threats into execution, equally so. It is too clear to require discussion. The cases cited on this point are mostly those of other and distinct crimes, such as State v. Hopkins, 50 Vt. 316; Brock v. State, 26 Ala. 104; People v. Sharp, 107 N.Y. 427, 14 N.E. 319, and others; or to show previous attempts to commit the same crime without evidence to connect the respondent with them, as in State v. Freeman, 49 N.C. 5, 4 Jones Law 5. We should not be inclined to follow Baker v. People, 105 Ill. 452, where it was held that upon a trial for an attempt to commit an abortion, a prior attempt to commit it upon the same person during the same pregnancy could not be shown.

9. It is insisted that the court erred in admitting evidence of the sleigh tracks, and experiments with the sleigh, for the reason that there was no evidence to connect the respondent with the tracks. The...