State v. Magoon

The opinion of the court was delivered by Ross, J. I. The respondent’s first exception is to the admission of the testimony of Elondas Hood, on the ground that it was — 338 — not strictly rebutting to the testimony introduced in. defence; and that if it did tend to rebut that testimony, it also tended to strengthen and confirm the case as made by the prosecution in the opening, and for that reason was not admissible under the rule regulating the admission of testimony in criminal causes. The exception assumes that the prosecution in its close is limited to the introduction of strictly rebutting testimony, and that in this respect it has not the same right which a plaintiff has in a civil cause. In the trial of both civil and criminal causes, the order in which the testimony shall be admitted is one of practice rather than of strict right, and may, in the discretion of the court, be varied, to meet the exigencies of a given case, without error being predicable thereon, unless it is manifest that the variance has operated to surprise, or in some way work a legal disadvantage to, the excepting party. Archb. Crim. Pr. & Pl. 576; Pingry v. Washburn, 1 Aik. 264; Clayes Morse v. Ferris Higbee, 10 Vt. 112; Goss v. Turner, 21 Vt. 437; Bishop Crim. Proceed, s. 966. This exception might be disposed of on this ground alone, inasmuch as it does not appear that the court did not exercise its discretion in admitting the testimony of said Hood ; neither does it appear that the respondent was surprised or put to disadvantage by its allowance. He could not well have been surprised or put to disadvantage, as Hood testified to the respondent’s admissions ; and all the persons present when the admissions were made, so far as is disclosed by the exceptions, had been previously called by the prosecution. The respondent, the only other witness present, was in court — know whether he made the admission — and could have availed himself of the privilege of testifying in regard thereto if he chose. It is true that the courts of this State in the trial of criminal causes have generally, but not universally, required the prosecution to put in its whole case in the opening, and have confined it in the close to testimony which tended to rebut the testimony of the respondent. We apprehend that this practice, so far as it varies in this respect from that which obtains in civil cases, has been adopted rather out of tenderness to the respondent, and that be — 339 — fore entering on his defence, he might be fully apprised of the case which he had to meet, than because he could of right demand it. But neither in this State nor county, so far as we are aware, has it ever been pushed to the extreme of rejecting in the close, testimony which legitimately tended to weaken the effect of the testimony adduced by the respondent because it also tended to strengthen and confirm the testimony introduced in the opening by the prosecution. We think the testimony of Hood was rebutting, within the practice which prevails in this State and in this country, and also within the common-law rule as generally understood and applied by the courts of England. It tended to weaken the testimony introduced by the respondent. Nor was its character as such affected, nor the right of the prosecution to introduce it in the close taken away, because it also tended to strengthen and confirm the testimony of Averill in regard to the same admissions, introduced by the prosecution in the opening. This exception, therefore, was not well taken, and is overruled. II. The respondent also excepted to the charge of the court as detailed, and complains particularly of that sentence in regard to Mrs. Perrin’s testimony in which the court says : “ And if you discard it wholly, it neither aids nor injures the case made by the State,” on the ground that, as the testimony tended to show that she might have been guilty of or had some connection with the murder, the respondent had the right to have her testimony weighed in that light, and thus, indirectly, to show that he was not guilty of the homicide, and that this sentence of the charge would either exclude, or turn the attention of the jury from, such consideration of her testimony, and so mislead them, to the respondent’s injury. We do not think the portion of the charge excepted to is fairly open to this construction or criticism. It is to be assumed that in other portions of the charge the court had instructed the jury that the State must prove the respondent guilty of the murder, and also that the jury are possessed of ordinary sense in appreciating the use of language as the means of communicating ideas. Prom the portion of the charge included — 340 — in the exceptions, it is manifest that the respondent’s counsel had argued to the jury that Mrs. Perrin, by reason of her contradictory statements and threats, quarrels, and previous relations with the murdered man, was not to be credited as a witness, and that the prosecution was to be prejudiced because it had called and used a witness of such a character. It was to countervail and set this matter right before the jury that the instruction complained of was given ; and it must be construed, as the jury must have understood it, with reference to the occasion that called it forth. The court properly directed the attention of the jury to the difference between the relation which the State sustains to the witnesses called and used by it and that of a party. When a party introduces and uses a witness without being compelled thereto hy some rule of law, he impliedly assumes and vouches for the credibility of the witness, and is therefore justly prejudiced if he uses a witness of disreputable character as to credibility. But in criminal prosecutions, the State is bound to produce and use all witnesses within reach of its process, of whatever character, whose testimony will throw light upon and characterize the transaction under inquiry, whether it tends to convict or acquit the respondent ; and hence it is not to be prejudiced by the character of the witnesses it produces and uses. The public, in whose interest the prosecution is carried forward, has as much interest in establishing the innocence of the respondent if he be innocent, as his guilt if he be guilty. In propounding this duty and its effect, the court, both before and after the sentence particularly complained of, told the jury it was their duty to weigh all the testimony, determine its credibility, and how far it tended “ to shed light on the truth.” It was in this connection, and while elucidating this duty of the prosecution, that the court told the jury that they were to determine the credibility of Mrs. Perrin as a witness, and if they found her without credibility, and so discarded her testimony wholly, the fact that they discarded it, though she was produced and used by the State, should neither aid nor injure “ the case made by the State.” The court very properly in the same connection called the attention of the jury to the fact that Mrs. Perrin’s relation to the case was that of a witness and not that of a — 341 — respondent, and hence that her inconsistent and contradictory declarations, except when made in connection with some act— and as giving character to that act — which implicated her with the transaction under investigation, could be weighed only as affecting her credibility as a witness. There is no error apparent in the portion of the charge excepted to. The respondent reserved no other exceptions. Respondent’s exceptions are overruled, and judgment rendered that he take no benefit from the same.