State v. Wentworth

37 N.H. 196

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1858
• Status: Published

Opinion

Eastman, J.

Several questions are raised by this ease, and some of them we have found to be not without difficulty.

The first question presented relates to the admissibility of the evidence showing obstructions upon the track of the railroad other than those for which the conviction was had. At about twenty minutes before 8 o’clock the train struck the obstructions for which the indictment was found. On the same evening, about forty minutes before the train hit the obstructions, there was found upon the track near the gas-house, about half a mile from the place where the train struck, an iron rail — apparently placed there for the purpose of obstructing the train — which was immediately removed from the track. About an hour after the train struck and passed along, two other iron rails and other obstructions were found upon the track near where the train struck, which were placed there after the train passed. All of the obstructions were placed upon the track after 6 o’clock that evening. TJpon this evidence the court instructed the jury, in substance, that if they were satisfied that the prisoners, or either of them, placed the rail upon the track near the gas-house, and the rails and stones upon the track after the train passed, they might weigh these acts as evidence against the prisoner who placed them there, upon the question whether he also placed upon the track the obstructions for which he was indicted. "Was this evidence competent, and were these instructions correct ?

It is a fundamental rule that evidence must correspond with the allegations of an indictment, and be confined to the point in issue. Accordingly it is not competent for the State to prove another distinct ofience for the purpose of raising an inference that a prisoner has committed the crime with which he is charged. 1 Greenl. Ev. sec. 550 ; 1 Phil. on Ev. 178 ; Roscoe’s Cr. Ev. 73 ; State v. Renton, 15 N. H. 169.

"When, however, it is material to show the intent or the malice with which an act is done, other acts than those charged in the indictment are oftentimes competent evidence. Thus in case of treason, the declarations of the prisoner, and seditious language used by him, and acts committed in another country, are admissible as tending to prove the overt acts charged. Rex v. Watson, 2 Stark. 134; Foster’s Crown Law 10; 15 Howell’s State Trials 747. So in case of a note where the intent is in question. Rex v. Hunt, 3 Barn. & Ald. 566. And on an indictment for sending a threatening letter, another letter from the prisoner, explanatory of that set forth in the indictment, is admissible. 2 East’s P. C. 1112. And upon a charge of a conspiracy to cheat, proof is admissible showing that the prisoners at a different time made similar representations to other tradesmen than those named in the indictment. Rex v. Roberts, 1 Camp. 400; Roscoe’s Cr. Ev. 87. On indictments for passing counterfeit money, also, or for uttering forged paper, knowing it to be such; for shooting, with intent to kill; and in civil actions for defamation, where the damages depend upon the degree of malice, such evidence is competent. Rex v. Wylie, 1 New Rep. 92; McKenney v. Dingley, 4 Greenl. 172 ; Bridge v. Eggleston, 14 Mass. 245 ; Symonds v. Carter, 32 N. H. 459 ; Chesley v. Chesley, 10 N. H. 330 ; 1 Greenl. Ev., sec. 53.

And where the offence complained of is so connected with other acts of the prisoner that they may all be regarded as forming one entire transaction, it is in the discretion of tlie court to receive evidence of the whole. If, however, the other acts proposed to be shown are of themselves indictable offences, the evidence is generally-excluded, unless the prosecutor will consent to an acquittal on all but one. Rex v. Westwood, 4 Carr. & Payne 547; Rex v. Dunn, Ry. & Mood. Cr. Cases 146. But in King v. Ellis, 6 Barn. & Cress. 76, it was held that where several felonies are so connected together as to form part of one entire transaction, evidence of them all may be given in order to prove the party guilty of one. In that case the prisoner was indicted for stealing money from the till in a shop, and it was shown that he took money from the till several times in the course of the day, which had been marked so as to be identified. It was objected that each taking was a distinct felony, but the evidence was admitted as being part of one entire transaction.

In Heath v. Com., 1 Robinson’s (Virg.) Rep. 735, and which is cited as authority in Wharton’s Cr. Law 171, on a trial for murder, evidence was offered that the prisoner, on the same day that the deceased was killed, and shortly before the killing, shot-a third person; and it was held admissible, although it tended to prove a distinct felony committed by the prisoner; such shooting and the killing of the deceased appearing to be connected as one entire transaction. '

In Com. v. Willard, 1 Mass. 6, which was an indictment for shop-breaking and for stealing from the shop, proof that part of the goods stolen were found in the defendant’s possession was held to be primd facie evidence, not only of the stealing, but of the breaking and entering, as alleged in the indictment. And in an indictment for arson, in Richman’s Case, 2 East’s P. C. 1035, evidence showing that property which had been taken out of the house at the time of the firing, was afterwards found in the possession of the prisoner, was held competent.

It is oftentimes material to show, where the evidence adduced is circumstantial only, that the prisoner was in a situation to have committed the offence charged; and when such fact is important to be established, evidence confined to the point is competent.

The evidence introduced in this case, showing the rail upon the track near the gas-house, and the obstructions placed upon the track after the train passed, was not received for the purpose of showing the intent or the malice of the prisoners. The rulings and instructions of the court will not warrant such a conclusion. The jury were in effect told that these acts, if done by the prisoners, might be considered upon the question whether they had placed upon the track the obstructions for which they were indicted. ¥e cannot therefore hold the evidence competent, as showing the intent or malice of the prisoners, as has been argued; and if it was admissible, it must be upon the ground of its immediate connection with the offence charged, so as properly to form a part of the same transaction. And, after some hesitancy, we have come to the conclusion that in this view of the matter the evidence may be regarded as competent. All of the several obstructions were placed upon the track -within about two hours, and probably within a much less time, and the distance between the most remote of them was about half a mile. If the defendants placed the rail upon the track near the gas-house, before the train came along, they were in the vicinity of the track about the time that the obstructions which the train hit must have been placed there. And so, also, if they placed the obstructions on after the train passed, they must have been there about the time that it did pass.

These acts -would show that the defendants were near the place where the offence was committed, about the time it was committed, and that they were consequently in a situation to place the obstructions on the track, and had the strength and ability to put them there. The acts were the conduct of the prisoners about the road ; and taking into view the time when the several obstructions were placed upon the track, and their nearness to each other, and we think that they may be regarded as so far connected as not to be objectionable to the rule that the evidence must be confined to the point in issue. They may be considered as the continuation of the same transaction. They show that the defendants were in a situation to commit the offence charged.

The second exception taken to the verdict and to the ruling of the court was, that no competent evidence was offered to show the existence of any such corporation as the Boston and Maine Railroad, nor that the railroad belonged to such corporation.

The indictment charged that the defendants placed the obstructions “ upon the track of the railroad of the Boston and Maine Railroad, in Somersworth.” The testimony upon this point consisted of parol evidence that the railroad was called and known by the name of the Boston and Maine Railroad, but there was no proof of the organization or existence of any corporation. The court ruled that the evidence introduced was competent to maintain the indictment on this point.

The statute upon which this indictment was founded is as follows: “If any person shall willfully and maliciously place any obstruction on the track of any railroad, or remove any rail therefrom, or in any way injure such railroad, or "do any other thing thereto, whereby the life of any person may be endangered, he shall be punished by solitary imprisonment,” &c. Rev. Stat., chap. 215, sec. 3.

The offence described in this statute is complete by willfully and maliciously placing an obstruction upon the track of any railroad, whereby the life of any person may be endangered. It is not material whose property the road is, nor whether owned by individuals or a corporation ; nor, if owned by a corporation, whether such corporation has been legally chartered or legally organized. If it is a railroad in actual use, and the obstruction is maliciously placed upon the track, so that the life of any person may be endangered, the crime is committed, and the offender is liable to the penalty fixed by the statute. The offence does not consist in the injury done to the track of the road, or to the locomotive or cars, or to any other property, but in placing the obstructions upon the road, or doing the other acts whereby danger is caused to the lives of those who may be passing on the road. The ownership or possession of the road is, therefore, not material; it does not enter into the essence of the crime; and if not material, then it is not necessary to be alleged in the indictment. It is unlike the crimes of larceny, burglary and arson. In larceny the statute settles the matter. The provision is, “if any person shall steal, take and carry away the property of another;” and in several cases of larceny the ownership of the property is material to be fixed and its value found, inasmuch as it forms the basis of the sentence. In burglary, the essence of the crime is the terror caused to the occupants of the dwelling. 2 Leach 981; 2 East’s P. C. 501; Whar. Cr. Law 368 ; and hence the necessity of stating who the occupant is. It may be the owner, or a tenant. State v. Rand, 33 N. H. 216. And the same rule prevails in arson. Arch. Cr. Pl. 206; Whar. Cr. Law 377; State v. Sandy, 3 Iredell 570; People v. Van Blarcum, 2 Johns. 105.

In Commonwealth v. Wade, 17 Pick. 395, a quaere is suggested, whether, in an indictment charging that the defendant set fire to a building, and that by the burning of such building a dwelling-house was burned, it be necessary to state who was the owner or occupant of such building, or that it was the building of another — the gravamen of the offence being the burning of the dwelling-house.

And in State v. Hoe, 12 Vt. 93, upon an indictment for burning a meeting-house, it was held that it was unnecessary to allege who was its owner or occupant, and that any such allegation, if made, was immaterial.

The statute upon which this indictment was founded is comparatively recent, and similar statutes in other jurisdictions are also recent; and no decided case has come to our knowledge where a construction upon this point has been given. The constitution provides that “ no subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him;” and an indictment should inform the accused of all the leading and material grounds of the charge against him, in due form, that he may thereby be enabled to make his defence; and likewise be able to plead the conviction or acquittal in bar to another prosecution for the same offence. If a prisoner, charged with placing obstructions upon a railroad, under this statute, is informed by the indictment in what place the obstructions were put upon the road, the nature and character of the obstructions themselves, and the name of the railroad on which they were placed, he has all the information upon that point that is necessary for his defence. It gives him the information plainly, fully and substantially, and it is of no consequence to him to know who owns the road. He is told both what and where the road is, upon which the obstructions have been placed; he is informed of their nature, and the place where they were put upon the road, and his crime consisting in maliciously placing the obstructions upon the road, whereby the lives of the travelling public are endangered, it is immaterial for him to know to whom the road belongs, or who occupies it.

And if the ownership or occupancy of the road does not enter into the essence of the offence, and consequently is not material to be alleged in the indictment, then it cannot be material to be proved, unless so averred as to become matter of essential description.

As a general rule, all descriptive averments in an indictment must be proved as laid; but if an averment may be entirely omitted without affecting the charge against the prisoner, and without detriment to the indictment, it may be disregarded in evidence. State v. Copp, 15 N. H. 212 ; State v. Bailey, 31 N. H. (11 Foster) 521; 1 Phill. Ev. 207.

The allegation in this indictment is, that the defendants “ willfully and maliciously, did place upon the jtraclc of the railroad of the Boston and Maine Railroad, in Somersworth, two iron rails,” &c. The evidence to sustain this averment was, that the railroad was called and known by the name of the Boston and Maine Railroad; and the exception was, that the existence of the corporation, or that of the road belonging to the corporation, should be shown. The exception proceeds upon the ground that the description in the indictment is one of property — that the import of the language is, as though it had been stated to be the track of the railroad “ belonging to,” or “the property of,” the Boston and Maine Railroad. It is undoubtedly true that, at common law, in arson, burglary and larceny, where the burning, breaking and theft are committed upon the property of individuals simply, the description of the ownership of the property is expressed by tire preposition “of ;” thus in arson, it is described as “ the dwelling-house of him, the said A. B., there situate;” in burglary, “ the dwelling-house of one E. F., there situate ;” in larceny, “ of the goods and chattels of him, the said Gr. H.” But in the forms of indictments upon the various statutes, both English and American, extending these offences, particularly arson and burglary, to many-other buildings and to other property than dwelling-houses, the description of the ownership of the property is expressed by the phrase, “belonging to,” or the “property of,” oí-, “ in possession of.” Thus in arson, for burning a church, it is described as “belonging to” the second parish in the town of A.; or for burning a stack of hay, the same phrase is used, or “property of;” and for burning a cotton mill, it may be described, if the facts be so, as “ in the possession” or “occupation of.” 3 Chitty’s Cr. Law 1129, 1130. And under the statute of 9 George 1, Chitty, in giving the form for setting fire to a place of confinement, describes it as “ a certain building there situate, and being called the Hole, the same then and there being the prison of the borough of K., in the county aforesaid.” In his marginal note he says that this count is describing the building to be a prison; and in the second count of the indictment he omits entirely the phrase, “ the same then and there being the prison of the borough of K.,” treating it merely as a description of the building, and not of ownership or occupancy. 3 Chitty’s Cr. Law 1129 ; State v. Roe, 12 Vt. 113.

Ve do not, therefore, feel pressed by any weight of authority to construe the expression used in this indictment as meaning the property of the road. According to the doctrine of State v. Roe, it might be wholly rejected as surplusage; and by precedents furnished by Mr. Chitty, which may be regarded as analogous to this, the expression can be well considered as a description of the railroad where the obstructions were placed, and not of any ownership or property. The averment may be treated the same as though it had said, “the track of the Boston and Maine Railroad,” or “ the track of a railroad called the Boston and Maine Railroad.” And if it had been intended to allege property in the road, it should, according to the precedents of indictments upon the statutes to which we have alluded, have said that it was the track of the railroad “belonging to,” or “the property of,” the Boston and Maine Railroad.

"With this view of the allegation, the evidence offered was competent to sustain it. It was proved that the road was called and known as the Boston and Maine Railroad, and upon the construction which we put upon the averment, this is all that is alleged, and is sufficient to answer the requirements of the statute. The defendants cannot be misled by the averment, anc} to require the government to allege in whom the property in a railroad is, and to prove it, or to show that it has been duly chartered and organized, would oftentimes render a conviction, next to impossible.

The next question raised was as to the admissibility of the testimony of the witness Drury.

There is no rule of evidence better established than that hearsay is not competent testimony. But it does not follow that, because the words in question are those of a third person, they are necessarily hearsay. On the contrary, it happens, in many cases, that the very fact in controversy is, whether such things were spoken, and not whether they are true. Thus, replies given to inquiries made at the residence of an absent witness, or at the dwelling-house of a bankrupt, denying that he was at home, are original evidence. So to establish the death of a party, inquiries at the place of his last residence or among his relatives, and the answers, are competent. 2 Greenl. on Ev. sec. 278; Emerson v. White, 29 N. H. (9 Foster) 297. In these and the like cases it is not necessary to call the persons to whom the inquiries were addressed, since their testimony could add nothing to the credibility of the fact of the denial. "Wherever the fact that such communications were made is the point in controversy, the evidence is admissible. 1 Greenl. on Ev. secs. 100, 101.

Drury did not pretend to testify what the persons of whom he made inquries said to him, but simply stated the fact of his ineffectual effort to obtain information. That was all that was attempted to be proved by him ; and had the persons of whom he sought to obtain the information been called as witnesses, they could, upon this point — the point of his seeking information — only have testified that Drury made the inquiries and failed to obtain information, wbicb is all he has testified to. They might have gone farther, and testified that they never knew or heard of such a man as Hasty. The evidence in both instances would be similar, and negative in its character, and entitled to more or less weight according to the means of observation and knowledge that the witnesses might have. In both instances it would be the evidence of a fact, the result of more or less of knowledge, but not the rehearsal of what others had said. And upon this view, which was the one taken by the court at the trial, we think the evidence was admissible.

It is further objected to the verdict that evidence of the admissions made by "Wentworth was improperly admitted. It is contended that the admission that he knew who put the rail upon the track near the gas-house, and that he stated it was Stone, was made under the inducements held out by the agent, or by the reward that was offered, and that these inducements were such as to show that the admission was not voluntary, and therefore not competent.

The general principle that all confessions that are obtained by the influence of hope or fear, are incompetent, is well settled. 4 Hawk. P. C. 425; 1 Greenl. Ev. secs. 215, 219 ; 1 Phill. on Ev. 111; State v. Due, 27 N. H. (7 Foster) 259.

But it is not necessary that the confession should be the prisoner’s own spontaneous act; and if it be obtained by a promise of some collateral benefit or boon, no hope or favor being held out in respect to the criminal charge against him, it will be competent. 1 Greenl. Ev. sec. 229; Rex v. Green, 6 Carr. & Payne 655.

In Regina v. Boswell & als., 1 Carr. & Marsham 584, upon the commission of the crime of murder, a reward of ¿6100 was offered to any one who should give such information and evidence as should lead to a conviction; and also the promise of the secretary of the Home Department, that a pardon would be recommended to an accomplice who should give such information as should lead to the same result. The court held that the mere knowledge by the prisoner of such a handbill would not be sufficient ground for rejecting the confession, unless it appeared that the promise made, that a pardon would be granted, had induced him to make the confession.

In the present case it does not appear distinctly that Wentworth had seen one of the handbills; but even if he had, it contained no promise of favor or pardon to the guilty party; nor does the ease state any evidence that the reward was brought to his notice by any one so as to have been contemplated by him, or to have had any influence upon his mind. And at best it was but a collateral boon. We think it quite manifest that the admission was not objectionable upon this ground.

Nor do we discover any thing in what was said by the agent, that convinces us that the admission was caused by any promises or threats made by him. On the 5th of March the agent requested Wentworth to produce the person in whose company he said he went to Salmon Falls, at his, the agent’s expense, and said that if he should be satisfied, on seeing him, th\vit Wentworth was not on or about the track the evening before, he should not be prosecuted. The agent had no power to make any such engagement, or to prevent a prosecution, and, upon the authority of many cases, a confession thus made could not be excluded. But we do not propose to discuss that position. On the next day the agent and Wentworth went into an attorney’s office, and while there Wentworth admitted that he knew who placed the rail upon the track near the gas-house, and stated that it was Stone. The promise on the day before was, that if Wentworth would produce Hasty, and satisfy the agent that he, Wentworth, was not on or about the track, he should not be prosecuted— the favor was to depend upon the production of Hasty, and the proof that Wentworth was not in the vicinity of the track. The admission on the following day was that Stone put the rail on the track. This was not the production of Hasty, nor evidence that he, "Went-worth, was not on or about the track; but, so far as it showed any thing, it was an admission that he was himself near the track. The- inducement held out by the agent was not to make any such statement as that, but the contrary ; and when we put together the two, and consider that they took place on different days, it does not appear that the admission was made in consequence of the inducement, but must have been in connection with other matters stated in the office at the time the admission was made, and which, being immaterial for the decision of the case, are not stated.

This embraces the several exceptions to the verdict, and they must all be overruled.

A number of questions are presented upon the motion in arrest of judgment, but those particularly relied upon are the following:

1. That the indictment does not appear to have been found at a trial term of this court. This was not necessary to be stated. The trial terms and law terms are both terms of the Supreme Judicial Court, and it is sufficient to aver in the indictment that it was found at a term of the Supreme Judicial Court. This question was settled in Carroll county, in the case of State v. Gary & als., 36 N. H. 359, and it was there held that the allegation that the indictment was found at a particular term of the Supreme Judicial Court, was not defective or imperfect, inasmuch as the terms of the court are fixed by public law; and that where the time is stated, with the time and place of holding the court, it is sufficiently stated, and sufficiently appears with reasonable certainty, whether the indictment was found at a trial or law term of the court.

2. That the indictment does not allege that the offence was committed in this State. The objection is not that the town and- county are not set forth, but that the State is omitted. The indictment is in the usual form in this respect, commencing, “State of New-Hampshire.” The necessity of stating, in an indictment, the place where an offence was committed, is to give the prisoner the proper information, and to show that the court assuming to try him have jurisdiction of such offences committed in the place alleged. State v. Cotton, 24 N. H. (4 Foster) 143. And if the town and county are distinctly averred, that is abundantly sufficient for both purposes.

3. That the indictment does not allege that the Boston and Maine Railroad was a corporation, or carrier, or a way, or road used for travel. This objection was substantially considered in examining the second exception to the verdict. It was not necessary to state that the railroad was a corporation, or carrier, &c. Obstructions maliciously placed upon a railroad, whether a corporation or not, whether public or private property, by which the life of any person may be endangered, is an indictable offence under the statute. The indictment avers that these obstructions were maliciously placed upon the track of the Boston and Maine Railroad, whereby the lives of twenty persons, riding in the cars upon said railroad, were greatly endangered, and that averment was sufficient.

4. That the indictment does not properly allege the obstructions with time and place. The allegation is substantially that the obstructions were placed upon the road on the 4th day of March, 1857, at Somersworth, in the county aforesaid — the county having been previously stated in the margin of the indictment — and this was sufficient. Arch. Cr. Pl. 17; 3 P. Wms. 439 ; State v. Cotton, 24 N. H. (4 Foster) 143.

5. That the indictment does not set out the name of any person whose life was endangered.

In framing indictments for offences created by statutes, it is in general sufficient to state the offence in the words of the statute, with the particular facts constituting the crime, or to, set forth substantially all the material matters embraced in the statute going to make up the offence; and if the defendant insists upon the insufficiency of such an indictment, it devolves upon him to show that, from the obvious intention of the legislature, or the known principles of law, the case falls within some exception to such general rule. Whar. Cr. Law 91; State v. Abbott, 31 N. H. (11 Foster) 434. The words of this statute are, “whereby the life of any person may be endangered;” the words of the indictment are, “ whereby the lives of sundry persons, to wit, twenty persons, riding in said cars upon said railroad, were greatly endangered.” This exception to the indictment is not taken till after trial and a verdict of guilty, and unless the court see that the indictment is essentially defective in this respect, the exception cannot prevail. If it was insisted upon at the trial that the names of the persons whose lives were endangered should be made known to the prisoners, and that the information was necessary to their defence, we have a right to presume that the information was given, and that the names were shown in evidence, otherwise the exception would appear in the ease. If, then, the indictment would have been bad, in this respect, on special demurrer, it would be sufficient after verdict.

But we think this averment is well enough, in itself considered. The particular gist of the offence consists in maliciously placing the obstructions upon the road; and if a prisoner is sufficiently informed of this fact, it is not necessary for his defence, or for a proper understanding by the court of the crime charged, that the names of the persons riding in the ears, whose lives were endangered, should be set forth. It would oftentimes be impracticable to state them, beyond the names of the employees of the corporation at the time upon the cars, for it is a matter of public notoriety that the passengers do not give their names, and, unless actually injured, leave the cars at once on arriving at the place of destination.

Tbe case of State v. Prescott, 88 N. H. 212, is to some extent an authority upon this point. That was an indictment on tbe statute for keeping a gaming-bouse. Tbe provision is, that if any person shall keep any gamingbouse or place, and shall suffer any person to play at cards, &c. Tbe indictment charged that tbe defendant did keep a certain gaming-bouse, and suffer many idle and dissolute persons therein to play at games, &c., and it was held that it was not necessary to set forth tbe names of tbe persons who played in tbe bouse, tbe offence consisting in keeping a gaming-house.

Tbe other objections taken to tbe indictment are not insisted upon in tbe argument, and upon examination do not appear to be doubtful. They are overruled. And tbe result to which we have arrived is, that there must be

Judgment on the verdict.