State v. Marsh

70 Vt. 288

• Court: Supreme Court of Vermont
• Decided: January 15, 1898
• Status: Published

Opinion

Ross, C. J.

The respondents were indicted and tried on the charge of having murdered George Marsh, the husband of the respondent Marsh, by means of arsenical poison, on January 29, 1896. On the trial several exceptions were taken which the respondents’ counsel have not urged in their brief, nor in their argument, but say that they do not waive them. The court has examined these-exceptions, but, as it has discovered no error in the proceedings of the trial court in regard thereto, these exceptions will not be further considered in this opinion.

(1) The exceptions taken in regard to allowing the State the same number of peremptory challenges, which by law is allowed to both respondents, are fully considered and decided in the recent decision of State v. Noakes, 70 Vt. 247. These exceptions are not sustainable.

(2) The respondents were permitted to show by Wm. H. Dillingham that in the fall of 1895 George Marsh told witness that “he was giving his horse arsenic for worms, that he put it in his oats, beginning with small doses and increasing them.” This was offered to show that he was acquainted with the use and character of the drug, and also to show that he then had it in his possession. It was excluded for the purpose last named against the exception of the respondents. The State gave evidence tending to establish that the deceased came to his death of arsenical poison, criminally administered by the respondents. The respondents contended that, if his death was caused by arsenical poison, such poison was procured and taken by the deceased for the purpose of destroying his life. They gave evidence tending to show that he at times contemplated self-destruction. They contend that, inasmuch as the establishment of self-destruction in this manner includes the establishment that he had arsenic in his possession, such possession was a part of the res gestae and could be established by the declarations of the deceased. They rely to support this contention on several citations from authorities, and especially upon the decision of this court in State v. Howard, 32 Vt. 380. In that case the deceased, with her twin sister, went from Sutton to Bradford where the respondent, who was a physician, lived, and at whose house the deceased died. The twin sister was allowed to testify, against the exception of the respondent, who was on trial for causing the death of the deceased, by procuring upon her an unjustifiable abortion, “I and she supposed her to be pregnant, and she left Sutton to get an abortion procured, as was understood between us at the time we left.” This court in disposing of this exception said, “The declarations of Olive Ash as to the purpose of the journey in going to the respondent’s, were properly admitted as a part of the res gestae. The mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act of going, and were admissible as a part of the act.” We do not question the soundness of this decision. The declarations of the deceased to her sister characterized the journey. The journey was admissible to bring the deceased to the residence of the respondent. In the case under consideration the declaration of the deceased characterized no act which was shown to have any connection with his death, by his own hand, nor by the hands of the respondents. The declaration shows that he then, some two or three months before his decease, was feeding arsenic to his horse. It does not declare that he had it in any particular quantity. It does not tend to show that he had it with a purpose of using it to destroy his own life, nor that he was keeping it for that purpose. The tendency of the declaration is to show that he was using up whatever arsenic he then had, and has no tendency to show that he kept it and used it for his own destruction. There is nothing in the declaration relevant to the issue on trial, as claimed by the State, nor as claimed by the respondents; nor does it explain any principal fact under investigation. Declarations which are admitted as original evidence, says Mr. Greenleaf in his work on Evidence, Yol. I, §108, “are distinguished from hearsay by their connection with the principal fact under investigation. The affairs of men consist of a complication of circumstances, so intimately interwoven as to be hardly separable from each other. These surrounding circumstances may always be shown along the principal fact.” Declarations, to become part of the res gestae, must have been made at the time of the act done which they are supposed to characterize; and must be well calculated to unfold the nature and quality of the facts they are intended to explain, and so harmonize with them as obviously to constitute one transaction. Enos v. Tuttle, 3 Conn. 250; State v. Fournier and Cox, 68 Vt. 262. If the declaration has its force by itself, as an abstract statement, detached from any particular fact in question, depending for its effect on the credit of the person making it, it is not admissible in evidence. Such a declaration is hearsay and no more. Lund v. Tyngsborough, 9 Cush. 36; Articles 3 and 11, notes and illustrations, Stephen’s Digest of the Law of Evidence (Chase’s Edition); Barnum v. Hacked, 35 Vt. 77.

On these principles, the declaration of the deceased, for the purpose of establishing that he then had arsenic in his possession, was clearly hearsay, and subject to the infirmity of that class of evidence. The fact that he then had arsenic in his possession for the purpose declared, if proven by competent testimony, with nothing more shown in regard to it, would have no legitimate tendency to establish that the deceased had it at the time of his final sickness, nor that he used it to produce it. It might raise a conjecture in a speculative mind, but not a probability, in a reasonable one, that he had it and used it at the later date.

The declarations of the deceased offered*fto be shown by Lyman Farrar and excluded by the court, were properly excluded under the principles already stated. So, too, was the testimony offered that the witness purchased arsenic for the deceased in 1892. There was no testimony offered in connection with it, tending to show that the deceased kept, or had it, so he could have used it to produce his last sickness.

The declarations of the deceased offered to be shown by H. S. Fuller are governed by the principles already stated. Nor were they competent to show that the deceased was acquainted with the character and use of the drug. They only tended to show that he had knowledge of the character and use of horse powders of which arsenic formed some indefinite and undisclosed part. None of the authorities cited and relied upon by the respondents are in conflict with this holding. Commonwealth v. Trefethen, 157 Mass. 180, cited by them, treats quite elaborately of the purposes, for which declarations of a deceased person may be shown as independent evidence to establish relevant facts; and holds that they can be considered as such evidence only when the state of the mind of the deceased — such as knowledge, intention, purpose, anger, malice, good faith, and so forth— is a relevant fact, to be established as of the time the declaration is spoken, and that for all other purposes except where the declaration is incidental to, accompanies and qualifies, characterizes or explains some principal, relevant fact proven by competent testimony, such declaration is hearsay and incompetent testimony. That decision sustains the decision of the trial court in admitting the declaration to establish that the deceased had knowledge of arsenic, but goes no further. The whole trend of the discussion and reasoning of the opinion, and its exact language, confines the use of declarations of the deceased within the limits just stated.

(3) The exceptions to the improper answers to the proper question® put to witness Harry Marsh cannot avail the respondents. This has been so often decided by this court that we need not state the reasons given for so holding. Randolph v. Woodstock, 35 Vt. 291; Houston v. Russell, 52 Vt. 110; Frary v. Gusha, 59 Vt. 257; Lawrence v. Graves, 60 Vt. 657; Foster's Exrs. v. Dickerson, 64 Vt. 233, point 13 of opinion; Cutler & Martin v. Skeels, 69 Vt. 159. Such improper answers are given without fault of the examining counsel or of the trial court. All that the court could do would be to caution the jury in regard to the use they should make of the improper answers. Frary v. Gusha, supra. It is shown that the court emphatically did this in regard to these improper answers, and without such showing this would be presumed to have been done. Frary v. Gusha, supra. State v. Meader, 54 Vt. 126, relied upon, is clearly distinguishable in principle from the cases governing this class of answers. In State v. Meader, the counsel offering the improper testimony took the risk of being able to produce such connecting testimony as would render the testimony excepted to admissible, and failing to produce it, the improper testimony was before the jury by his fault, and by the fault of the court also. It should have required the introduction of the connecting testimony before receiving the testimony excepted to as the latter was admissible only upon the introduction of the former.

(4) The witness F. F. White was asked what he observed in respect to the conduct of the respondents towards each other on an occasion, the day after the death of the deceased, and answered, “I observed they were very intimate.” To this answer the respondents excepted, for that it was not responsive to the question, and, as given, was simply an expression of the witness’s opinion. The court then had the witness state the acts which he observed which gave him the impression that they were very intimate. There was no error in this action of the court. The rule governing the admission of this class of evidence is well stated by Peck, J., in Bates v. Sharon, 45 Vt. 481, as follows: “Where 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 trier 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.” This is given as an exception to the general rule, that the opinion of non-expert witnesses is inadmissible. This exception has been frequently recognized by this court. Smith v. Miles, 15 Vt. 249; Crane v. Northfield, 33 Vt. 124; Cavendish v. Troy, 41 Vt. 108; Fulsome v. Concord, 46 Vt. 135; Knights. Smythe, 57 Vt. 529; State v. Ward, 61 Vt. 153; State v. Bradley, 64 Vt. 466. This answer if non-responsive to the question, comes within this exception to the general rule.

Such impressions upon the witness’s mind, produced by observing appearances and acts, is more in the nature of a resultant fact than a mere judgment .or opinion derived from an attempted description of the appearances and acts. Such description rarely can convey the full force of the impression made, by his observation of them, upon the mind of the witness. Hence the exception to the general rule. If an improper answer to a proper question, there was no error, as just shown.

(5) The testimony of Mrs. Charles Nichols was clearly admissible against Mrs. Marsh. Whether it was admissible against respondent Buzzell depended upon whether he heard what Mrs. Marsh said. Where he was, where Mrs. Marsh was relatively to him, and the tone of voice in which she spoke, were given in evidence. Whether he, under the circumstances, considering his partial deafness, must have heard what Mrs. Marsh said, was a question of fact to be determined by the jury. The testimony tended to show that he must have heard. It was properly submitted to the jury. They were explicitly charged not to consider it against him unless they found that he heard what she said. He did not except to the submission of the question to the jury. His exception was that he was so deaf that he would not have been likely to hear what wassaid. This exception is not sustainable, if the evidence, as it clearly did, tended to show that he probably heard what was said. The other exceptions to this witness’s testimony are not now pressed and, we think, are not sustainable.

(6) The respondent Marsh excepted to the ■ testimony given by Amanda Bishop because it did not sufficiently appear that the note in question was written by her, and, secondly, the witness had voluntarily parted with its possession. No other exception was taken to the admission of this testimony. The witness testified that she had been accustomed, from time to time, to receive notes from her to carry to respondent Buzzell, and so received the note in question, but did not know that it was written by Mrs. Marsh, but thought there was no other person then confined in the department of the jail occupied by her. The witness did not say whether the note had the name of respondent Marsh signed to it, but that she handed it to her at the jail door, with the request that she would give it to respondent Buzzell. It was an open note. These facts, with the contents of the note, which were that she “had heard that Buzzell was going to turn State’s evidence and asked him not to go back on her,” clearly had a tendency to show that Mrs. Marsh knew the contents of the note, whether she wrote it or procured some one to write it for her. The evidence was admissible so far as regards the first exception.

The witness occupied the position of housekeeper in the jail. She testified that she showed the note to the jailer, who told her it was right for Buzzell to have it, and she gave it to him. This showed the note out of the possession of the witness by the direction of Mrs. Marsh. Therefore Mrs. Marsh cannot be heard to complain that the note was wrongfully out of the witness’s possession. However wrongful her parting with the note was as regards the State, it was not wrongful as regards Mrs. Marsh. But the witness stood in no such relation to the State that she could properly withhold it, in its behalf. We are not aware of any rule of law, which made it the duty of the jailer, even, to retain the note in his possession. He is charged with the duty of keeping, safely, the prisoner; and, to that end, may examine communications to and from him. He is not charged with the duty of seizing, or looking up evidence against him. A party who intentionally destroys the best evidence for the purpose of enabling him to supply its place by secondary evidence, and perhaps without such specific purpose, deprives himself of the right to introduce secondary evidence. But, whether the circumstances are such that the party has estopped himself from using secondary evidence, must be a question for the trial court. Whether its findings from competent testimony in this respect can be revised on exceptions in this court, may be questionable. If they can be, no such facts, in this case, were shown as made it the duty of the trial court to deny the State the right to prove the contents of the note by this witness. Hence her second exception to the admission of this testimony cannot avail respondent Marsh. Hence this evidence was properly allowed to be used against her. The cases relied upon by her, show that these questions are largely determined by the facts of each case. The facts in this case disclose no error on this point.

(7) The admission, in rebuttal, of testimony, in regard to the health of the deceased, as bearing upon its suicidal influence, or tendency, comes within the decision of State v. Magoon, 50 Vt. 333, in which this subject was fully considered. The testimony admitted in this case was not open to the objection which existed in that case, that its tendency was to strengthen, incidentally, the case made by the state in the opening. A careful examination of Dr. Johnson’s testimony, both as set forth in the exceptions, and in the transcript of the stenographer’s minutes, shows that his attention was called to the health of the deceased during the summer of 1893, and for a week before and during his last sickness; and then, only with reference to his physical condition, as in regard to his ailments, and the doctor’s treatment of him. The witness’s attention was not called to his condition of health, at those times, as bearing upon a suicidal influence or tendency. Whether the State might have developed this subject, in its opening, is immaterial. The respondents first claimed — and introduced evidence to support the claim — that his health was such as might induce suicidal inclinations, and the State had the right to rebut this testimony, as it did. Both sides without objection, pursued this order of introducing the testimony. To deprive the State of the right of rebutting the respondents’ testimony on this subject, in the order of the trial pursued, would shut out any investigation of or inquiry into this claim first raised by the respondents in their testimony.

(8) “At the close of the evidence, and before argument, the respondents asked the State to elect on what count or counts of the indictment it sought to go to the jury, and it elected to go to the jury upon the counts charging the respondents as principals.” They then contended that the State could only charge and convict them as principals; that they nor either of them, could be so convicted, if the testimony should only show that they were accessories before the fact. The court, against the exception of each respondent, charged the jury, that, under the statute, they might convict the respondents, or either of them, as principals, even if the evidence only tended to show that they, or either of them, were accessories before the fact. V. S. 5160 reads : “A person who is accessory before the fact, by counseling, hiring, or otherwise procuring an offense to be committed, may be complained of, informed against or indicted, tried, convicted and punished, as if he were a principal offender.” As contended, at common law, such accessory could not, in felonies be tried and convicted as an accessory before the fact, upon an indictment charging him as a principal. State v. Buzzell, 58 N. H. 257; Williams v. State, 41 Ark. 173; State v. Ricker, 29 Me. 84. It has always been held that such accessory could be indicted, tried and convicted in misdemeanors as principal; that in law there were no accessories before the fact in misdemeanors. This statute in language, clear and explicit, places such accessories, in all crimes, on the same legal standing in which they were at common law, when the crime charged was a misdemeanor. It has not been suggested that this statute invades any right secured to the respondents by the Constitution. By the indictment such accessory, when charged as principal, is informed of “the cause and nature of his accusation” as required by Article 10 of the Bill of Rights-, and, by the statute which he is presumed to know, that on the trial, he may be called upon, when charged with murder in the first degree, to answer the charge either as principal or accessory before the fact. The statute removes the distinction which existed at common law between felonies and misdemeanors, and places felonies upon the basis of misdemeanors at common law. The charge on trial is the same, and visited by the same punishment, whether the respondent is a principal, or an accessory before the fact, at common law. The only distinction is in regard to some of the evidence. The Constitution does not require the evidence relied upon to establish the charge to be set forth in the indictment. State v. Noakes, 70 Vt. 247. There was some evidence in the case which enabled the respondents to raise this question. This exception is not sustained.

(9) To the closing argument of Mr. Plumley, concerning the proceedings at a court of inquest the respondents excepted. In support of this exception the respondents contend that Mr. Plumley was allowed to state facts to the jury which were not in evidence before them, and to base his argument thereon. It was in relation to the testimony of Hiram Henry. His testimony was important. In substance, he testified that on the night before George Marsh died, he was sitting on the lounge with respondent Buzzell, in a room adjoining the one in which Mr. Marsh was sick and lying upon the bed; that Mr. Buzzell arose from the lounge, and went to a cupboard in the room, nearly opposite the lounge, and took on the point of a teaspoon, from a glass sauce dish, a white powder therein in bulk; then went into the room where Mr. Marsh was, mixed the powder in water and gave it to Mr. Marsh; that the water was taken from a tumbler which Mr. Buzzell took from a corner of the room out of his sight, where a stand was, but came with it into that part of the room where he could see him take therefrom water into the teaspoon, for the purpose of mixing it with the powder. The witness had been used first at the court ofi inquest, and, within a day or two following, at the court of preliminary examination. At these two courts he had been examined by the counsel for the State, at the first of which the respondents, if present, were not represented by counsel. On cross examination, the witness was critically examined, at length, on what he testified to, on the trial, and on what he testified to formerly, and especially at the court of inquest. The court of inquest was the initiatory step in the commencement of these proceedings. *

The counsel for the respondents introduced his testimony given before the court of inquest, and claimed and argued that the witness had changed his testimony in a very material respect in regard to the place from which Buzzell took the white powder; “that the witness between the time of the inquest and the court of examination had purposely changed the location of the saucer from the stand in the bed-room to the cupboard in the winter kitchen, for the purpose of making his statements appear more probable.”

At the court of inquest, as shown by the minutes of his testimony taken and returned according to law, and which were given in evidence for the purpose of contradicting the witness, he had testified on this point as follows:

“Q. Any medicine given him while you were there? A. Yes. I cannot tell what it was. Q. Who gave it to him ? A. Buzzell went to a cupboard — I sat on a lounge on the side opposite the cupboard on the other side of the room in the kitchen — took a teaspoon and took some powder and gave it to him. Q. Did he give him that medicine as a dry powder? A. He mixed it with some water that was on the stand. Q. You see Marsh take it ? A. I did. Q. Could you see Marsh from where you sat ? A. Yes, sir.- * * * Q. Was there medicine in the bedroom ? A, There was medicine on the table. Q. In a saucer? A. Yes, sir. Q. Did you see how much there was in the saucer ? A. No, sir. Q. How far did he have to walk from the saucer to where Marsh was? A. Not more than two steps. Q. Are you positive you saw white powder? A. I am positive. Q. When did it first occur to you that it was an important matter? A. Well, sir, I told my folks when I got home, it was the first time I ever heard of a doctor leaving powder in bulk. Q. What just put this in your mind ? A. It put in my mind that there was something that wasn’t right.”

At the trial witness testified that he was in the bedroom, before this occurrence, on that day, and that there was a stand there on which there was a saucer with medicine in it, and a tumbler with water in it.

In regard to this testimony and ih answer to the argument of the respondents’ counsel that the witness had purposely changed the location of the saucer from the stand in the bedroom to the cupboard in the winter kitchen, between the times he was examined at the inquest and at the preliminary examination, Mr. Plumley was allowed, against the exception of respondents, to call “the attention of the jury to their knowledge of courts of inquest, to the informal manner in which they are conducted, not as courts of trial, but to elicit facts upon which criminal action might follow, to the fact, well known by the jury, that at courts of inquest the evidence was elicited in an informal manner and by attorney or attorneys and magistrate, and that it was not an orderly formal eliciting of facts which witnesses were known by counsel to possess, but an investigation to find out what the witnesses knew, in any way, or in any part, concerning the cause and manner of the death of the person upon whose body inquest was being held.”

The witness’s examination in the court of inquest was properly before the jury for consideration. This gave Mr. Plumley the right to discuss it and to call their attention to such considerations as properly surrounded and inhered in it. It is not contended that Mr. Plumley misstated the purpose, scope, or characteristics of the proceedings of a court of inquest. The contention is that his remarks on these subjects were without evidence, and were the injection of these facts into the case and a pressing of them upon the jury for consideration. If this contention is true, the allowanee, by the trial court, of these remarks in regard to the jurors’ knowledge of courts of inquest and of their methods of proceedure, and then stating accurately what the function of such a court is and its methods of proceedure, was error. There are a class of facts, which need not be proven, because courts take judicial notice of them. Among these are the public laws of the State, the other courts established by law in the State, their judges, extent of jurisdiction and course of proceeding. Art. 58 Stephen’s Digest of the Law of Evidence, notes and cases cited. Winooski v. Gokey, 49 Vt. 282. Hence by bringing the testimony of this witness in the court of inquest into the case, the respondents brought with it the statute creating courts of inquest, the extent and purpose of their jurisdiction, and their course of proceedings. These include all the facts which Mr. Plumley called to the attention of the jury, as well known to them. An inspection of the testimony of this witness given in the court of inquest reveals, moreover, the informality in the proceedings in that court of which Mr. Plumley speaks. This disposes of the entire matter covered by the exception to Mr. Plumley’s argument, and of all the exceptions which have been pressed upon our consideration. None of the respondents’ exceptions are sustained.

It is therefore considered that judgment ought to be rendered upon the verdict, and it is rendered thereon. Let sentence be imposed, and execution thereof done.

Start, J., does not concur in the decision on points 6 and 9.