Handley v. Call

The opinion of the Court, after a continuance for advisement, was drawn up by Whitman C. J. The exception to the admission of the witness, Glidden, is not sustainable. This is a special action on the case for a conspiracy, between the defendant, and one Joel How, jr. to defraud the plaintiff. Nothing more is recoverable than the amount of the injury, which the plaintiff personally and individually has sustained. No one, unless by special agreement, could have a right to share'with him in any — 47 — portion of the damages he may recover. If the suit were for a trespass done to a chattel owned by the plaintiff and another, jointly, he could recover only for the amount of his own individual injury. Of course the other, no more than any one else, could have, without a special agreement for the purpose, any interest in what he might recover. It is not even suggested that Glidden had made any such agreement with the plaintiff. He therefore, could have had no interest in the event of this suit, and the exceptions must bo overruled. But the defendant has filed a motion for a new trial, alleging that the verdict, which was for the plaintiff, was returned against evidence, the weight of evidence and against law. The motion is at common law, and is grantable in some measure at discretion. 3 Blac. Com. 390. When the justice presiding at the trial, or the Court, upon an examination of the case, is satisfied that injustice has not been done by the verdict, a new trial should not, ordinarily, be granted. Boyden v. Morse, 5 Mass. R. 365; Train v. Collins, 2 Pick. 145; Roberts v. Carr, 1 Taunt. 495; Pluncket v. Kingsland, Bro. P. C. 404; Falconburg v. Pearce, Amb. 210. The verdict in this case cannot be said to have been rendered wholly against evidence ; for a witness, Joel How, jr. produced by the plaintiff, the co-conspiritor named in his writ, testified to all the material facts requisite to sustain the action. If the witness were perfectly credible, and there were no evidence inconsistent with that given by him, the verdict should not be disturbed. And so, if the witness were impeached, and yet was corroborated by other evidence, so that the jury should not have hesitated to believe the existence of the facts as detailed by him, no new trial should be granted. But it is contended that the witness has placed himself in an attitude, that should have rendered his testimony of very little weight, and that it is without corroboration. It appears that he was the one accused by the plaintiff in his writ and declaration, as a co-conspirator with the defendant in the perpetration of the fraud. He was, moreover, a deputy sheriff, under oath to act faithfully as such; yet he now testifies, that he lent — 48 — himself to the defendant to aid him in a most nefarious attempt ; and actually made two false returns of. attachments, as having been made several days before they were in fact made. These returns were made as long ago as March, 1841; and, that they were false, was kept a secret by him till the fall of 1845. And it appears that, in the mean time, he had made the most emphatic declarations that the returns were true on several occasions. And at the trial of this cause in the District Court, according to the testimony of Wales Hubbard, he gave as a reason for now coming forward with the disclosure of his malconduct simply that it was because he thought “ it might as well be out as in”. At the former trial Mr. Hubbard also states, that he swore that this was the first business he ever did as a deputy sheriff; and that it was on the sixth of March; that about six hours afterwards Hussey handed him writs against the same debtor, against whom the defendant’s writs were issued, of which he made service between sundown and twelve o’clock at night of that day; and the returns were made as of the fifth of March. At the trial in this Court he testified, that the-first writ was handed him by the defendant on the sixth of March, on which he made a return as of the fourth of that month ; and that it was destroyed, and two new ones made and handed to him by the defendant on the seventh, on which he returned attachments as having been made on the third and fourth of that month. There are some other discrepancies between his statements on the former trial, as stated by Mr. Hubbard, and the one in this Court. And there are some particulars in which his testimony here can scarcely be reconciled, the one part with the other. Before he made the disclosures of his turpitude it appears he had married a neice of the plaintiff’s. Under these circumstances it is insisted, that the testimony of this witness should not have been credited. But his credibility was matter for the jury; and they would seem to have believed him. We might not, and it is not improbable that we should not have been satisfied to find the facts relied upon to be sufficiently established by such a witness, if uncorroborated by other evidence. — 49 — Rut it is contended for the plaintiff, that the testimony of the witness was corroborated, first, by the testimony of Israel L. Kinney. He testified, that he sold the defendant one of the notes described in the defendant’s writ, served by How, and that he thought he must have sold it on the fifth, of March, which would be a day after the attachment., as returned by How; and this, it was supposed would show that the attachment was antedated, as testified by How. But Kinney testified that the defendant gave him a note for the amount on the same day he sold the note to him ; and on being by the defendant shown a note canceled, he said he believed that was the one the defendant gave him in exchange; and that appeared to have borne date the fourth, and of course rendered it presumable that he must have been mistaken, as to his having sold his note to defendant on any other day: and hence his testimony failed to corroborate that of How. The next piece of evidence relied upon in corroboration of that given by How was obtained from Asa Hutchins, which, though objected to by the defendant, was admitted. It was, that the defendant, on the sixth of the same March, procured him to note an attachment on a writ as of the fifth of that month, though he, the witness, was not then qualified as a deputy sheriff; but was then about being qualified; that the defendant said to him, that it would make no difference. Whether he afterwards extended, and perfected his return, he could not remember. He did not recollect in whose favor or against whom the writ was. Of course could not say it was one of those served by How. This testimony, if properly admissible, may have been viewed by the jury as tending to fortify the presumption that How testified correctly. If such can be believed to have been its effect, and if it was improperly admitted, the admission of it may form a good cause for granting a new trial; for the verdict would be rendered without being warranted by law. It is true, however, that the admission of illegal evidence does not, in every case, entitle a party against whom it is admitted, and against whom the verdict may be rendered, to a new trial. Malin v. Rose, 12 Wend. — 50 — 258; Crary v. Sprague, ib. 41; Kelly v. Merrill, 14 Maine R. 228; Polleys v. Ocean Ins. Co. ibid. 141. But if it be reasonable to believe, that the jury could have been unduly influenced by the wrongfully admitted testimony, or if it be doubtful whether they would otherwise have decided as they may have done, a new trial should be granted. Ellis v. Short, 21 Pick. 142; Wilkins v. Paine, 4 D. & E. 468. In the case at bar we can by no means be sure, that the jury were not influenced by the supposed illegal testimony, and if it should not have been admitted, we should be bound' to grant a new trial. We must then proceed to consider whether it was legally admissible. There are instances in which it has been found necessary to admit the proof of acts, similar to those directly in question ; but it is apprehended, that this has been done only where it might become indispensable to do so, in order to show a guilty knowledge or intention ; as in the case of an indictment for passing counterfeit money or bank bills. An attempt to pass the same, or similar ones, in other instances, under suspicious circumstances, has been often admitted in order to show that the culprit must have known of the spuriousness of those for the passing of which he stood indicted. And the same has been done in cases of goods obtained with an intention to defraud the vendor, by way of showing the intention of the vendee in making the purchase. In the case at bar there was no need of proof to show, that one procuring an officer to make a false return, must have had a guilty knowledge, and a criminal intent. The cases are few, and arising out of the peculiar necessity of the case, in which it can be allowable to show, that a person accused of committing an offence, has committed other offences of a similar kind, in order to his conviction of the offence charged. And on the whole, it must be admitted, that the case before us is not of a description allowing of such proof. The propriety of granting new trials is very aptly elucidated in Black. Com. p. 390, where it is said, that, “ in the hurry of a trial, the ablest judge may mistake the law, and misdirect — 51 — the jury. He may not be able so to state and range the evidence as to lay it clearly before them; nor to ta.ke off the impression, which may have been made on their minds by learned, and experienced advocates.” And “ under these circumstances; the most intelligent and best intentioned men may bring in a verdict which they themselves, upon cool deliberation, would wish to reverse.” A motion has been also made in this case for a new trial, on account of newly discovered evidence; and the proof taken tO' support it has been very voluminous; but much of it, and indeed a very large proportion of it, is without use. The indictment of the defendant for the same cause, relied upon by the plaintiff, and the acquittal of the defendant thereof, is wholly inadmissible; as nothing of the kind, unless by the consent of the plaintiff, could be used in evidence in the trial of this action. And the additional statements of the witness, How, proved to have been made on occasions, other than those proved at the trial, are but cumulative evidence, which is never considered as authorizing the granting of new trials. But the evidence does present one ground, if there were m> other, upon which it would be clearly reasonable, that we should suffer the cause again to be laid before a jury. Tt must now be taken to be a fact, susceptible of proof, that the plaintiff, before the commencement of this suit, became bound to indemnify his witness, Joel How, Jr., against harm for testifying to the facts of the alleged conspiracy, in which he himself was-the principal actor. But for this, it is reasonable to believe that no such testimony could have been obtained from him. There is nothing in the case that should be deemed indicative, that the disclosure by the witness, originated from any qualms of conscience on his part. On the contrary, when inquired of why he made the disclosure he replied, merely, that he thought it might as well be out as in. In such case the jury would have a right to infer, that the witness had been operated upon by considerations, other than those connected with a simple regard for the truth. And such a presumption might gain strength, and become fortified by other circumstances and considerations. — 52 — It cannot be predicated of the witness, that he was under any very powerful moral restraint. It may well be feared that an inconsiderable temptation would induce him to accommodate himself to the wishes and designs of any one, having a nefarious purpose to accomplish. It seems to be made manifest by the testimony of Hussey and Hilton, that the plaintiff has been, in no inconsiderable degree, hostile to the defendant. The witness, before he made his disclosure against the defendant, had married the plaintiff’s niece; and had become connected in a store which afforded him his means of support, he himself being destitute of property; and the plaintiff had lent his aid in upholding the business in the store, by becoming surety for the stock employed in it. All these considerations could, and perhaps well might, raise doubts in the minds of jurors whether the inducement to the giving of the bond was strictly in accordance with a design merely to elicit nothing but the truth. The defendant at the former trials appears to have attempted, without success, to prove the existence of such a bond. It may now, therefore, be regarded as newly discovered evidence; and taken in connection with all the other evidence, showing the conduct and pliability of the disposition of the witness, and the temptation he may have been under to accommodate the plaintiff, and the hostility of the latter to the defendant, we cannot doubt, that the existence of such a bond might well have a very material effect upon the minds of jurors in deciding the case, depending almost, if not quite wholly, on the testimony of this witness for its decision in favor of the plaintiff. New trial granted.