State v. Benner

64 Me. 267

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1874
• Status: Published

Opinion

Appleton, C. J.

Numerous exceptions have been alleged to the rulings and instructions of the justice presiding at the trial of the respondent. Those exceptions we propose to consider and discuss in the order of their presentation.

I. Henry J. Motz was called as a witness by the state. The objection is taken that he was cross-examined by the attorney general, and that leading questions were proposed to him.

The answers of a witness, honest and favorable to the party calling him, will obviously depend on the questions proposed. But the party calling will only propose those favorable to his interests. His interrogation will naturally be one sided and the answers partial and incomplete — the inevitable result of incomplete and partial inquiry. Interrogation ex adverso, then, is indispensable — that thereby the errors of indistinctness, incompleteness, or incorrectness may be removed and the material facts developed fully, distinctly and correctly.

The witness called, being favorable to the party calling him and dishonest, the necessity of interrogation as a means of extracting the truth is at once perceived, and its value indefinitely increased. Is the witness indistinct, the needed inquiries remove all indistinctness. Is he incomplete, interrogation is the natural and obvious mode of obtaining the desired fullness and completeness. Is he incorrect, inquiry is the only way of detecting and rectifying incorrectness. Important as is the whole truth to correct decision, its attainment will be endangered unless the right of interrogation and cross-interrogation be conceded to the parties litigant to enable them to elicit such facts as from inadvertence,- want of memory, inattention, sinister bias, or intentional mendacity may have been omitted.

But it may happen that the witness may be adverse in sympathy and interest to the party by whom he is called. Cross-examination of an opponent’s witness is allowable. Why? Because, being called by him, it has been imagined that there was some tie of sympathy or interest, which would induce partiality on the part of the witness in favor of the party, who called him. If the witness is from any cause adverse to the party calling him, the same reasoning which authorizes and sanctions cross-examination, more or less rigorous, equally requires it wh en the party finds that the witness, whom the necessities of his case has compelled him to call, is adverse in feeling, is reluctant to disclose what he knows, is evasive or false. Important as interrogation may be, if the witness is friendly, to remove uncertainty and indistinctness, and to give fullness and clearness, doubly important is it, if the witness be dishonest and adverse, to extract from reluctant lips, facts concealed from sympathy, secreted from interest, or withheld from dishonesty. Cross-examination may be as necessary to elicit the ‘truth from one’s own,. as from one’s opponent’s witness. When the necessity exists, equal latitude should be allowed in the one case as in the other. The occasion for the exercise of this right must be determined by the justice presiding. It can be by no one else. Its allowance is a matter of discretion, and not the subject of exception.

The presiding justice, finding Motz to be an unwilling witness for the state, allowed leading questions to be proposed; and permitted him to be cross-examined by the counsel calling him. This was in manifest furtherance of justice and in entire accordance with judicial decisions. Moody v. Rowell, 17 Pick., 490; York v. Pease, 2 Gray, 282; Green v. Gould, 3 Allen, 465.

II. Where a witness, called by a party, appears adverse in interest to the party calling him, the presiding justice may, in his discretion, permit the party so calling him to ask leading questions. This permission- is discretionary on his part, and not subject to exception. The presiding judge seeing and hearing the witness, and observing his manner, is best able to determine whether he is hostile to the party calling him. In the present case, the presiding justice did determine that Motz was an unwilling witness, and one to whom leading questions might properly be proposed and his conclusion is not open to revision.

The answers of Motz being objected to, it may not be amiss to note what preceded the remark of the witness which is alleged as a ground for setting aside the verdict. The witness stated without objection that he went to see Holland and have a little talk with him. He was then asked : “For what purpose,” he wanted to have a talk with him 2 This was objected to, and the objection sustained, “unless connected with the case.” The witness was then permitted to say that he saw Holland in consequence of what he heard the night before. But this was harmless and immaterial. The court admitted these immaterial inquiries to ascertain if the former question had “any connection with the case,” that being the purpose for which they were proposed. The witness had said previously that he thought the prisoner had said he would “burn the damned old coop up.”

The witness was then asked: “Did you go to see him in consequence of what you hoard the prisoner say about burning 2” To this question an objection was noted. The answer was: “No, sir: I did not hear him say anything.” This constituted a full and complete answer to the question and furnishes no ground whatever of complaint.

The witness then, of his own motion, says: “But did you want me to tell you what I went for 2 T went up the next morning to see him, and he was not there, and I wont the next night, the night the house was burned, to tell him that if I was him I would get my hay and barn insured.” The question proposed by the government had been answered. The question proposed by the witness was not objected to nor was his answer thereto. The counsel for the prisoner should at once have objected to the inquiry, and moved to have it stricken out.

The court was not in fault. The counsel for the prisoner might have objected to the irresponsive remarks of the witness. 11,e neither objected to them, nor moved to have them stricken out. There is rarely a trial in which witnesses do not make remarks which, upon strict law, are inadmissible. The proper course is to act at once, and object.

But if counsel allow irresponsive answers to be made without moving to have them stricken out, and without objection, and still can have exceptions, no verdict can be safe. The judge is not notified that the counsel will except to the testimony and has a right to assume that no objection is relied upon, as none is made. If it had been, we must assume the ruling would have been correct. To permit this sort of practice would be to defeat the very ends of justice, and to encourage trickery and fraud. “Not having disclosed the character and ground of his objection,” as Barrows, J., remarks, in 61 Maine, 175, “at the time, when, if it had any substance, he should have done, he cannot be permitted to wait with it as a cause for a new trial. Honest dealing with the court and' the opposite party in a case, civil and criminal, requires that where an objection is made to a piece of testimony, apparently relevant and competent, . . the objection should be specifically set forth.” But here no objection was even made. No action of the court was asked for; nor was the judge’s attention called to the matter as it should have been.

III. John H. Benner, a brother of the defendant, was summoned as a witness and testified before the grand jury by whom the indictment was found. On the trial at nisi prius he was called as witness by and testified in favor of the prisoner. His testimony was material and exculpatory. The government called the foreman of the grand jury, by whom it was proved that the witness, in his examination before that body, had made statements under oath adverse to, and materially different from those to which he testified before the traverse jury. To this testimony the counsel for the prisoner objected.

Truth is desirable, from whatever source obtained. It is the very basis of justice. The exclusion of evidence is the exclusion of the very means of arriving at just conclusions. Exclude all evidence and the sacred lot alone remains as the foundation of judicial decision.

It is a rule of the common law, that the testimony of a witness may be contradicted by different and varying statements made at other and different times, either under oath or not. The evidence to the introduction of which exception is taken, is of that character. The truth from the lips of a grand juror is as important as from those of any other person. When his testimony is required in the administration of the law, wliy should not his testimony bo received ?

A witness testifies to one set of facts before the grand jury. Before the traverse jury he testifies to another statement, differing from, and contradictory to his former statement in every essential particular. He has committed perjury in the one case or the other.

Truth is as desirable before the grand jury as before any judicial tribunal. The whole criminal jurisdiction of the state rests primarily with them. Indictments are found and trials had in consequence of their proceedings. Is perjury no offence in their presence ? Can it be committed before them alone without infamy, and without fear of punishment ? Is the grand inquest of the county, whose duty it is to “diligently inquire and true presentment make of all matters and things given” them “in chai’ge,” to be prohibited from the investigation of crimes committed in its presence ?

The witness, it may be, told the truth before the grand jury. On the trial, suborned, seduced by sympathy, or swerved by prejudice, his statements false, perjurious, tending to the exculpation of the guilty prisoner, are offered in evidence. Are they to pass without contradiction or refutation, when the means of contradiction and refutation are at hand ? Is the guilty prisoner to escape? The witness may be impeached by other and opposing statements made elsewhere. Is a grand juror any the less reliable, or any the less competent as a witness, than any other citizen, who may not have been a member of that body ? Is a guilty and perjured witness to triumph in his crime? Or shall all the facts necessary to a just decision be disclosed, and the right prevail ? The witness may be false against the prisoner. Is innocence to suffer the penalty of guilt when the testimony necessary for its proof is so readily accessible ?

It is an axiom in the law of evidence that no testimony should bo rejected unless greater evil is seen as likely to arise from its admission than from its rejection. What possible evils can arise from this evidence ? Wherein does the testimonial trustworthiness of a grand juror differ from that of any other citizen ? What matters it whether he heard the contradictory and impeaching story of the witness in the street, or under oath and in the deliberations of the grand jury room — save that in the latter case it would be uttered under the highest sanctions for testimonial veracity. Let this evidence be excluded, and to the precise extent of the exclusion, the means for arriving at correct conclusions are withheld from the consideration of the jury. Injustice is done. The guilty escape. The innocent are punished. Such are, or may be, the results from the exclusion of relevant and material testimony.

It would be a strange and anomalous principle of public policy, which should specially clothe with impunity crime committed in the presence of a body impannelled to inquire into its existence, and when found to exist, to present it for punishment. It would be a discreditable denial of justice, which should exclude material and relevant testimony, whether needed for the conviction of the criminal, or required for the exculpation of the innocent. Where would bo the policy of licensing mendacity without the fear of contradiction or of punishment?

It is apparent, therefore, that so far as the great end of judicial administration — justice—is concerned, there can be no principle of public policy requiring the exclusion of the evidence by a grand juror of the testimony of a witness before his body whenever it may become necessary for the ascertainment of the truth.

But it is urged that the secrets of the grand jury must be protected — that the oath of the grand juror prohibits their utterance. The juror is sworn the state’s counsel, his fellows’, and his own, to keep secret. But the oath of the grand juror does not prohibit his testifying what was done before the grand jury when the evidence is required for the purposes of public justice or the establishment of private rights. Burnham v. Hatfield, 5 Blackf., 21. “It seems to us,” observes Ruffin, C. J., in the State v. Broughton., 7 Iredell, 96, “that the witness (who testifies before the grand jury) has no privilege to have his testimony treated as a confidential communication, but that he ought to be considered as deposing under all the obligations of an oath in judicial proceedings and, therefore, that the oath of llie grand juror is no legal or moral impediment to his solemn examination under the direction of a court, as to evidence before him, whenever it becomes material to the administration of justice.” To the same effect was the decision of the supreme court of Indiana in Perkins v. The State, 4 Ind., 222. In Com. v. Hill, 11 Cush., 137, a member of the grand jury which found an indictment was held to be a competent witness on trial to prove that a certain person did not testify before the grand jury. In Com. v. Mead, 12 Gray, 167, it was held that the defendant for the purpose of impeaching a witness for the commonwealth, on the trial of an indictment, -might prove that he testified differently before the grand jury. So, if to impeach a witness, evidence is offered of statements made by him before the grand jury, he may testify in rebuttal what those statements were. Way v. Butterworth, 106 Mass., 75. When a witness testifies differently in the trial before the petit jury from what he did before the grand jury, the grand jurors may be called to contradict him whether his testimony is favorable or adverse to the prisoner. So, in all cases when necessary for the protection of the rights of parties, whether civil or criminal, grand jurors may be witnesses. Such seems the result of the most carefully considered decisions in this country.

In Low’s case, 4 Maine, 440, it was held that grand jurors might be examined as witnesses in court to the question whether twelve of the panel concurred or not in the finding of a bill of indictment. If the counsel of the grand jurors is to be kept secret at all events, the votes of the grand jurors are certainly as much a matter of secrecy as anything done or testified to before them. The action of a grand juror is more especially a matter of his own counsel than any statement of any one else before his body. The assertion that less than twelve concurred in an indictment involves necessarily the assertion of who did and of who did not so concur.

The opinion of the court demonstrates the propriety of the reception of the evidence offered. But, logically, it was admissible only because otherwise injustice would ensue; because the requirement of secrecy is to be subordinated to the higher demands of justice. In McLellan v. Richardson, 13 Maine, 82, it appears that one of the grand jurors was a witness, and it would seem testified to facts occurring before the grand jury. “With regard to the course pursued in the examination of the grand jurors,” remarks Weston, C. J., in delivering his opinion, “it must be understood to have been assented to by the counsel for the defendant, and therefore furnishes no ground of exception on his part.” On the hearing of the case before the full court the defendants’ counsel offered to prove that Robert Dunning, one of the panel before whom the case was tried, had been a member of the grand jury by whom the trespass in issue had been investigated ; and to prove by the county attorney that the subject-matter of the present matter had been investigated by the grand jury. But the court refused to set aside the verdict for such cause. “Whatever examination was gone into before the grand jury,” remarks Weston, O. J., “no bill was preferred against the defendant. It is not then to be presumed, that any one of them was satisfied of his guilt. It is further stated and not denied, that the jurors generally before the trial commenced, were inquired of, whether they had formed any opinion or were sensible of any bias upon their minds, in relation to the case. Upon such inquiry every juror conscious that he did not stand indifferent, should, and it may be presumed would, disclose the fact.” The conclusion of the court, it will be perceived, is based upon the conduct of the juror under the circumstances. “Proof that the subject-matter of the present action had been investigated by the grand jury” would have been hearsay — and would have been ineffectual to disturb the verdict and therefore was properly excluded. In State v. Knight, 43 Maine, 128, one Rice, a witness for the state, on direct examination, testified “that on the afternoon of the day succeeding the death of the deceased he saw something on the sleeve of the shirt of the prisoner, which he-thought was blood ; and on cross-examination, that he was a witness before the magistrate and before the coroner’s inquest. In answer to the prisoner’s inquiry whether he had testified before, that he saw blood on the prisoner’s wrist, he answered in the affirmative ; and then the question was proposed in behalf of the prisoner, if this was the first time he had so testified except before the grand jury. This question being objected to, was excluded. It is not controverted by the prisoner’s counsel that a witness is not permitted to disclose evidence before the grand jury. It will be observed that no authorities were cited in reference to the question now under consideration; that no discussion was had of the principles involved, but that the counsel for the prisoner assented to the principle that, witness is not permitted to disclose evidence before the grand jury and the court without consideration or investigation accepted the surrender. But it is to be observed, that, irrespective of the consideration already discussed, the question was properly excluded on the “established rule, that a witness cannot be called upon to state his testimony given on a former occasion in a trial where the same question is relevant.”

The question we have been considering was neither argued, discussed or decided in any case in this state. The decision in Low\s case can only be sustained upon principles, which sanction the ruling on this point in the case at bar. The two other cases to which we have referred were decided upon satisfactory principles. They cannot be considered as adverse to the conclusion to which we have arrived. Indeed the question here raised has never been authoritively decided before in Maine.

IY. The counsel for the prisoner asked Holland when he was on the stand, whether or not he ever told the witness Lincoln that he did not authorize the commencement of an action against Bonner. He then proposed to Lincoln this question; “what did he (Holland) say about commencing an action against Mr. Benner 2” An objection being interposed, the court remarked “that was collateral, and you must abide by it. I exclude it.”

This ruling w'as correct. The inquiry of Holland was in relation to a collateral matter — what he said to a witness. The rule is well settled that a witness cannot be cross-examined on collateral matters in order to contradict and impeach his testimony. What Holland said to another witness about a suit was clearly collateral. Bell v. Woodman, 60 Maine, 465; Coombs v. Winchester, 39 N. H., 13; Page v. Homans, 14 Maine, 478.

Y. The answers to the questions proposed to a witness as to whether Holland said he mistrusted any one — or had suspicion of anyone — were properly excluded. Holland was a witness. What he said to any one was hearsay. His answers were not sought for the purpose of contradicting any previous statements he may have made. They were but hearsay and inadmissible.

YI. This question was proposed to Emilus W. Carter: “Was there anything said there that night about seeing Benner there ?” and the answer was excluded. The question seeks for hearsay. Nothing indicates that the answer would be proper. But if propeí’, it would be immaterial; for to the next question he answered that he heard nothing said.

YII. Before an exception that a question is not answered can be sustained, it must appear that the inquiry was pertinent. It does not appear that the question to Jacob R. Sinclair — “you'did not come till they sent for you ?” was either pertinent or material. Tt was cross-examination. The limits to collateral cross-examination are determinable by the presiding justice.

YIII. The presiding justice after calling the attention of the jury to their duties and responsibilities, briefly alluded to those of the executive, calling their attention to the duty of the governor and council to revise the evidence, and after revision, their power to pardon, commute or carry into execution the sentence of the law.

The object of the presiding justice was to show that the verdict of the jury was not final and irreversible, that it does not take away life. There was no misstatement of the law — nothing of which the prisoner can justly complain.

The allusion to the fact that in times past there had been repeated omissions to inflict the penalty of the law was by way of suggestion to the executive that the law had been disregarded, not by way of intimation that such would be the case in the future.

IX. Complaint is made that the testimony of the witness Bailey is inaccurately stated. It is denied that such is the case. But suppose it to be so, the counsel for the defence must have perceived it, and it was his duty to call the attention of the court to the fact, if in any instance from misapprehension the testimony of a witness had been erroneously stated. If there was a stenographic reporter, his minutes w'ere forthcoming for the correction of any mistakes in addition to those of the counsel. But on examining the evidence as reported, no error is perceived.

X. It is a part of the duty of a presiding justice to call the attention of the jury to the several positions respectively assumed by the counsel on the one side and the other, so that thereby the jury may the more distinctly perceive the precise question submitted to them for their determination. In doing so, no opinion was given as to the facts on the one side or the other. No preponderance is given to either the theory of the counsel for the prisoner or for the state.

XI. The remark that the question depended principally upon that of time, was no expression as to the guilt or innocence of the prisoner. The remark that the question depended on space would have been equally true and unobjectionable. If the crime of arson was committed it was essential that the incendiary should be at the place at the time of its commission. The time and place where the accused was when the fire was set, if it was set, were elements material to the establishment of guilt.

XII. The remark that if the prisoner falsified as to time, it was a circumstance strongly evidentiary of guilt, was not merely unobjectionable, but strictly and accurately correct. Crime is ordinarily proved by circumstantial evidence. Truth is the reliance of innocence. Falsehood is the resort of crime. All true facts are consistent with each other. If the prisoner was innocent, there was no reason for the withholding a true fact. Still less was there for uttering a falsehood. Falsehood is evidence of crime. Every falsehood uttered by way of exculpation becomes an article of circumstantial evidence of greater or less inculpatory force. A false alibi disproved is a circumstance indicative of guilt, though as the presiding justice very justly remarked, not conclusive.

XIII. The court instructed the jury that the prisoner was a competent witness, but that the force and effect of his testimony was wholly for their consideration; and remarked that “if the prisoner is guilty, you must come to the conclusion that his brother John was a confederate.” The justice of the remark is abundantly manifest from the testimony of the brothers. The remark was hypothetical, not positive. It was based hypothetically upon their finding the prisoner guilty, as to which no opinion whatever was expressed. The issue before the jury was as'to the guilt or innocence of the prisoner. The guilty confederacy of the brother was not a fact for the determination of the jury. If the jury found the prisoner innocent or guilty they had fully discharged their duty. Nothing more remained for them to do. Whether the brother was or was not a confederate was not the subject of inquiry on their part.

XIY. In the course of the charge, the presiding justice observed as follows: — “Then it is contended that there were two individuals who saw Benner there before the fire on this evening, and you have heard the testimony and arguments in relation to that. If you believe he was there perhaps you would not hesitate .to believe that he was the perpetrator of this crime. Then it is said that he made threats to burn the building, &c., and it is contended that he carried that threat into execution.” The prisoner denied his presence at the house of Holland at or near the time of the fire. Two witnesses on the part of the state testified that he was there. If the accused was there, then in denying the fact he was guilty of exonerative and perjurious falsehood. But falsehood — exonerative and peijurious falsehood is evidentiary of guilt. Such is the rule of law. No opinion as to the fact of guilt was given. No assertion as to its existence was made. “Perhaps the jury would not hesitate,” implies that perhaps they might hesitate. Whether they would or would not “hesitate to believe that he (the respondent) was the perpetrator of the crime,” was the question submitted to the jury and not withdrawn from their consideration by any assertion of fact, or expression of opinion.

The statute of 1874, c. 212, requires that “the presiding justice shall rule and charge the jury, orally or in writing upon all matters of law arising in such cases (jury trials) but shall not during the progress of the trial, including the charge to the jury, express an opinion upon issues of fact arising in the case.” As the court are to rule upon matters of law arising in the case, it will be their duty to state the principles of law applicable to tlie different phases it may present. As they are to charge, it is incumbent upon the court to call the attention of the jury to the evidence on the one side and the other. Indeed, in a long and complicated case, the jury taking no minutes of the evidence, the result would be somewhat a matter of chance, or dependent on the skill and eloquence of counsel rather thau the merits of the cause, unless their attention was directed to the issues of fact respectively raised and to the evidence bearing upon those issues. The statute contemplates that the judge shall charge the jury subject only to the prohibition that he shall not “express an opinion upon issues of fact arising in the case.” With the exception of this limitation, there is no restriction whatever xipon the rights, duties or powers of the court in the trial of á canse. That the presiding judge may state the grounds respectively taken by counsel — that he may rule the law as applicable to the hypothesis assumed by the one and the other is assumed in the idea of a charge. Tlie authoritative expression of opinion “as to the issues of fact arising in the case” is the extent and limit of the prohibition.

The correctness of the charge is not to be determined by mere isolated remarks without reference to their connection with what precedes and follows. It must be regarded as a whole. Upon a careful examination, no error is perceived in the legal principles therein stated. There is no judicial expression of opinion “upon issues of fact arising in the case.” No fact was withdrawn from the consideration of the jury. The force and effect of the testimony — the guilt or innocence of the prisoner — were explicitly and fully submitted to tbe judgment of the jury, and upon them must rest the responsibility of their conclusions.

Exceptions overruled.

Cuttíng, Walton, Dickerson, Daneobth, Yirgin and Peters, JJ., concurred.