State v. Ward. STATE v. THOMAS WARD. Exclusion of Witness. Exception to Argument. Evidence. Previous Attempt. Motive. Circumstantial Evi- Alibi. Joinder of Counts. R. L. ss. 1. It is not legal error to appoint as prosecutor ia a criminal proceeding an attorney who is acting as counsel in a civil suit against the respondent to recover damages for the acts on which the criminal action is based. 2. The statute permitting the peremptory challenge of jurors by the State in criminal cases is constitutional. 3. The trial court ordered that the witnesses for the State should be examined separately. Held, that an attorney of the court, who had been present during the trial, but not engaged in it, might testify in rebuttal to a fact as to which he was the only witness. 4. An exception to the language of counsel either in the opening statement or closing argument, must be taken at the time when such language is used, and an objection made for the first time after the statement or argument is finished, comes too late. 5. No exception lies to the offer of the prosecuting attorney to prove certain facts, where such offer is made in good faith. 6. A witness may state his opinion derived from certain facts, when the facts themselves are incapable of exact and minute description; as in this case, that a horse appeared tired, that tracks appeared to have been made by a sleigh or an overshoe. 7. Evidence of a previous unsuccessful attempt to commit the same crime for which the respondent is on trial is admissible. 8. The evidence for the prosecution tended to show that the respondent had been criminally intimate with one Olivia Amsden, the foster child of Foster, who owned the building for the burning of which the respondent was indicted, that this intimacy had been broken off by Olivia, and that the respondent was greatly enraged at this; and it was claimed that the motive of the respon·lent in committing the crime was to be revenged on Foster for interfering with his relations with Olivia, and to wound her by injuring her foster parent. Held, that with regard to this question of motive, (a) Foster might testify to the relations existing between himself and Olivia; (b) that Olivia might state what Foster had said to her about the respondent, which she afterwards communicated to him; (c) that any letters between Olivia and the respondent, tending to show their intimacy, that it was terminated against his will, and his threats towards her, were admissible. State v. Ward. 9. Respondent claimed that Foster burned his own buildings for insurance. In view of this, Held, (a) that the conduct of Foster at the fire was material; (b) also the value of the buildings, but not that of the land. 10. A witness testified that he was at a certain house and beard a team pass the night of the 29th of December, and that one Ryan was with him. Witness, on that and several nights, both before and after, was watching with a sick man at this house. Held, that he might be inquired of whether this was the only night that he heard a team pass. 11. The prosecution claimed that the respondent hired a team at St. Johnsbury, drove to the vicinity of Foster's, some twenty miles, left his horse and fired the buildings; that just before leaving his horse he turned from the main road at a sharp angle. Held, permissible to show that the same horse, when started in that direction four days afterwards, followed, without guidance, the same road, and made the same turn. 12. Respondent claimed that on the night of the fire he was, at half past nine, at Littleton, N. H. One Lynch testified that about six o'clock one evening he saw a horse in respondent's barn, and the wife of Lynch testified that one evening she saw respondent harnessing a horse about nine o'clock, and that later the horse was gone. Held, that they might further state that these matters were afterwards spoken of between them that night. 13. Tracks were found near the fire, which the prosecution claimed were made by an overshoe worn by the respondent. A witness having testified that the winter before he sold the respondent a pair, he may produce an overshoe in court which he swears is of the same size, and it may go to the jury. 14. Any articles used in connection with the commission of the crime or the previous attempt may be exhibited to the jury. 15. A witness may swear to his impression of a fact, although he will not state positively that the fact is so. 16. Where a part of the testimony of a witness upon a former trial is put in evidence for the purpose of impeaching bim, the whole of such testimony may be shown. 17. It was not error for the court, in its charge, to say that there was no claim that the fire was an innocent one; that it was the wicked and malicious act of somebody; that it was maliciously set; when the whole case had been tried upon this theory, and the jurors could not have inferred from the language of the court that they could convict without finding the body of the crime. 18. It was no error for the court to say to the jury, in explaining the nature and weight of circumstantial evidence, that many great jurists had pronounced it "of a nature equally satisfactory with positive evidence and less likely to proceed from perjury." If the law laid down by the trial court is correct, it is in no wise material in whose language it is expressed. 19. The fact that the respondent did not satisfactorily show where he was on either the night of the fire or that of the previous attempt, was properly commented upon by the counsel for the prosecution. State v. Ward. 20. The respondent set up an alibi. The court instructed the jury that the evidence to prove it must out-weigh the evidence to show the respondent at the place of the crime, and if so established they should acquit. It further instructed the jury that the alibi evidence was to be considered with all the other evidence in the case, and if upon the whole there was a reasonable doubt as to the respondent's guilt, he was entitled to an acquittal. Held, not contradictory and correct. 21. If it is established beyond all question that a respondent has sought to prove an alibi by false and fabricated evidence, that fact will be an admission of guilt, but not conclusive. Plea not 22. There is no objection to joining in an indictment counts charging the same act with different intents under R. L. s. 4128 and R. L. s. 4127. This was an indictment for arson in three counts. guilty. Trial by jury at the December Term of the Caledonia County Court, 1887, Veazey, J., presiding. Verdict of guilty on the second and third counts. The respondent took numerousexceptions in the course of the trial, of which the following were insisted on in the Supreme Court: 1. The State's Attorney was disqualified to prosecute this indictment by reason of having been employed by the respondent in a behalf which rendered it improper for him to act, and Henry C. Ide was appointed by the court to assist in the prosecution. Mr. Ide was attorney for Foster, the owner of the buildings which were burned, and had begun in his behalf a civil suit against the respondent to recover from him the damage caused by the fire. The respondent insisted that Mr. Ide ought not to be appointed special prosecutor by reason of his connection with Foster as above, but the court overruled this objection, and appointed him as a matter of discretion, and he acted as leading counsel in the preparation and trial of this case. 2. In impaneling the jury the State proposed to excuse one juror without assigning any cause, to which the respondent objected on the ground that the statute giving to the State the right of peremptory challenge was unconstitutional. The court held otherwise, and the juror was excused. 3. The respondent asked that the witnesses for the State should be excluded from the court room, and not examined in the presence of each other. Among the witnesses which it was proposed to improve on the part of the State were Mr. Mont State v. Ward. gomery, who was by assignment from the court assisting in the prosecution, and Mr. Sulloway, the Sheriff of the county, and in making the order the court, against the exception of the respondent, excepted them from its effect. It was not at that time supposed that Mr. Stafford would be a witness. 4. The opening statement to the jury was made by Mr. Ide. No objection was made to any part of it during its progress, but after it was concluded, the respondent excepted to certain portions of it. 5. In his closing argument to the jury Mr. Ide used the following language: "When one of you is charged with committing a crime, and has it in his power, when you are charged, not by officers of the law, but by your acquaintances and neighbors; when you have it in your power by opening your mouth to those neighbors and acquaintances to clear yourself; when you sit apparently still while those neighbors approach you, and give no sort of explanation or excuse; when you go into the justice trial and call witnesses in your behalf, but fail to call those witnesses you know could testify as to your whereabouts; when you let the matter drag along for about a year and never approach a witness who could tell of your whereabouts for at least a year and a half after the transaction occurred; will you have the hardihood to ask the jury to believe that you are innocent of the crime if you sit still during all the time without the least willingness to explain and clear yourself? “I ask you to judge Thomas Ward by your own consciences and see how you would act under these same circumstances." Immediately upon the conclusion of the foregoing remarks, counsel for the respondent excepted thereto. There was no affirmative testimony offered or admitted to show that the respondent did not approach persons, after being charged with this crime, in respect to his whereabouts on the nights in question, but upon the evidence as it stood as a whole, there was some ground for inference that he did not, at least until recently, and counsel for the respondent dealt with it in their arguments to the jury, urging that his conduct did not tell against him and was pursuant of a legal right. State v. Ward. 6. Mr. Ide on two or three occasions in the examination of witnesses asked a question to which the counsel on the other side objected. Mr. Ide then proceeded to state to the court, but in the presence of the jury, what he expected to show by the question. Counsel for the respondent did not make any objection to the making of the offer before it was begun, or while it was being made, but upon its conclusion excepted to its being made in the presence of the jury. 7. The buildings burned were situated in the town of Walden, about twenty miles from the village of St. Johnsbury, where the respondent resided. The evidence on the part of the State tended to show that during the afternoon before the fire the respondent hired a team of one Clutier in St. Johnsbury, that said team was seen in the respondent's barn in St. Johnsbury about seven or eight o'clock that same evening, and that the respondent returned with it at about four o'clock the following morning. With reference to the condition of the horse when it returned on the morning after the fire, the State was permitted to show that it appeared tired. 8. The buildings were burned on the morning of Jan. 27, 1886. On the 29th of the December previous an attempt had been made to burn these buildings. The evidence of the State tended to show that on the evening before this attempt the respondent had hired this same team, and driven with it into the vicinity where the buildings were. The State also claimed that the declarations of the respondent when he returned on the morning of January 27th, as to where he had been during the night, tended to show that he had been to the same place as on the night of the attempt four weeks before. The State was permitted to show in connection with these other circumstances the fact of the previous attempt. 9. The evidence for the prosecution tended to show that the sleigh which the respondent had on the two nights in question was of a peculiar and unusual make in certain respects, so that the track made by it in the snow would differ materially from that of other sleighs in common use in that vicinity. It ap |