State v. Ward.

13. It was error for the court to permit witness Streeter to testify about comparing postal cards with writing he had seen respondent write, not produced in court. Before comparison of hand-writing can be made, with a given signature as a standard, the court must pass upon the genuineness of the standard. Rowell v. Fuller, 59 Vt. 689.

14. The evidence about the conduct of the horse when driven over the road four days after the fire, which it was claimed respondent traveled with same horse on the night of the fire, was too vague and uncertain, and therefore inadmissible. Strong v. Slicer, 35 Vt. 43; Tower v. Rutland, 56 Vt. 32; Bryant v. C. V. R. R., 56 Vt. 712; Harris v. Howard, 56 Vt. 696; Com. v. Marshall, 81 Mass. (15 Gray) 202; Thompson v. Bowie, 4 Wall. 463; S. C. 18 L. C. P. Co. 423; Morris v. East Haven, 41 Conn. 252; Chase v. R. R. Co., 77 Me. 62; Jackson v. Smith, 7 Conn. 719; Bank v. Shakenan, 30 Wis. 336.

15. The witness Clutier should have stated what he testified at the justice trial, not that he testified substantially the same as in county court.

16. Witness Francis Lynch had no right to testify as to conversation that passed between himself and wife at any other time. except when they saw Ward going out of the barn with the team. Bartlett v. Cabot, 54 Vt. 242; Warden v. Powers, 37 Vt. 619; Whitney v. Houghton, 125 Mass. 451; State v. Davidson, 30 Vt. 377.

17. Mr. Montgomery's evidence about showing team to Sherrah and as to experiments then made, and driving the team up and down the road to see if Sherrah could identify it, was mere hearsay, and not admissible.

18. It was error to permit the witness Sawtelle to testify that, in his judgment, the track on the wall was made by an overshoe and why he thought so. The State claimed that Ward wore overshoes. Hence it was a material question, and for the jury alone to decide, from the description of the track, whether or not it was made by an overshoe. Bank v. Isham, 48 Vt. 593; Weeks v. Lyndon, 54 Vt. 638; Oakes v. Weston, 45 Vt. 430; Storr v. Bishop, 58 Vt. 500; People v. Hare, 57 Mich. 512.

State v. Ward.

19. It was error to admit the new overshoe produced by Drouin, because he had testified that the one he sold respondent was of different make and that makes of same size varied in width and length.

20. The sleigh, lard pail, candles, beets and newspaper, were improperly admitted because there was no evidence in the case tending to connect respondent with them. Jacobs v. Smith, 34 Md. 204.

21. The whole of Foster's testimony before the justice, which was permitted to be shown, in no way contradicted or explained that part testified to by Mr. May. Hence, it was error to admit it. The State must show that the respondent was not injured by this error. State v. Meader, 54 Vt. 131.

22. The court assumed that the fire was an incendiary one. This was error. 1 Hale's P. C. 596; (Ed. 1778, Dublin); Phillips v. State, 29 Ga. 105; State v. Hopkins, 56 Vt. 261; Westmore v. Sheffield, 56 Vt. 248.

23. There was error in permitting such comments as were made upon the respondent's conduct. He could not give the explanations, which he was blamed for not giving, without testifying himself. Hence this was in effect a comment on his neglect to testify. Com. v. Maloney, 113 Mass. 213; Com. v. Harlow, 110 Mass. 411; Willett v. People, 37 Hun. 479; Stokes v. State, 5 Bax. 619; S. C. 30 Am. Rep. 72; State v. Diskin, 34 La. An. 919; S. C. 44 Am. Rep. 448; State v. Cameron, 40 Vt. 565; Bob (a slave) v. State, 37 Ala. 564; Com. v. Scott, 125 Mass. 239; Com. v. McDermott, 123 Mass. Vail v. Strong, 10 Vt. 463; 1st Greenl. Ev. (12th Ed.) ss. 197 and 97a.

44;

Taken in con

24. The charge as to the alibi was wrong. nection with the rest of the case it was contradictory, mis-leading, and tended to confuse the jury. 1 Greenl. Ev. (12th Am. Ed.) ss. 81b and 81c; Alexander v. Blodgett, 44 Vt. 476; Borce v. Danville, 53 Vt. 183; State v. Cameron, 40 Vt. 564; Hoge v. People, 117 Ill. 35; Johnson v. State, 21 Tex. Ap. 368; Walters v. State, 37 Ohio 215; State v. Kelley, 16 Mo.

State v. Ward.

Ap. 213; Humphries v. State, 18 Tex. Ap. 302; State v. Jaynes, 78 N. C. 504; Adams v. State, 42 Ind. 373; People v. Kelley, 35 Hun. 295; Miller v. People, 39 Ill. 457; People v. Millard, 53 Mich. 63; McAully v. State, 74 Ala. 9; Stuart v. People, 42 Mich. 255; State v. Meyer, 58 Vt. 463; People v. Fong-Ah-Sing, 64 Cal. 253; Harrington v. State, 19 Ohio stat. 268; Walker v. State, 42 Tex. 370; State v. Johnson, 21 Tex. Ap. 381; Ayers v. State, 21 Tex. Ap. 405; Howard v. State, 50 Ind. 191 and 192.

25. The charge as to the effect of setting up the alibi, if not proven, was wrong. Turner v. Com., 86 Penn. St. 54; S. C. 27 Am. Rep. 683.

H. C. Ide, Marshall Montgomery and C. A. Prouty, for the State.

1. Mr. Ide was properly appointed as special prosecutor. State v. Bartlett, 55 Maine 200; Wharton's Criminal Law, s. 3002, and cases there cited; Commonwealth v. Scott, 123 Mass. 223.

2. The statute giving the State peremptory challenges is constitutional. Com. v. Dorsey, 103 Mass. 312; Walter v. People, 32 N. Y. 147; Jones v. State, 1 Ga. 610; Warren v. Com., 37 Pa. St. 45; Hartzell v. Com., 40 Pa. St. 462; State v. Wilson, 48 N. H. 390.

3. It was not supposed that Stafford would be a witness when the order excluding the witnesses for the State was made. Hence, he did not fall within it. Roscoe's Crim. Ev. supra; Powell v. State, 13 Texas Ct. App. 244; Lasiter v. State, 67 Ga. 739.

4. The exception to the statements of counsel in both the opening and close come too late, even if the language was objectionable, which we deny. Commonwealth v. Worcester, 141 Mass. 58.

5. Evidence of the previous attempt was admissible. Commonwealth v. McCarthy, 119 Mass. 354; Commonwealth v. Bradford, 126 Mass. 42; Commonwealth v. Jackson, 132 · Mass. 16; 1 Wharton Crim. Law, ss. 635 and 635 A; 635 E; 635 G; and 653 H; and cases there cited, and s. 649, Hayrick case; State v. Edwards, La. 15 Report, 370.

State v. Ward.

6. Evidence of the relations between Olivia Amsden and the Fosters was proper. In no other way could the extent and force of the alleged motive be shown. State v. Klim, 54 Ia. 183; Roscoe's Crim. Ev. pp: 92-97 and cases there cited.

7. The conversations between Olivia and the respondent relative to the burning of these buildings was admissible. His own declarations were clearly so; and the meaning of these could not be fully understood without knowing what she said to which they were a reply. State v. Bartlett, 55 Me. 217, Kelley v. People, 55 N. Y. 565; Roscoe's Crim. Ev. page 18; Liles v. State, 30 Ala. 24; American Dec. vol. 62, pages 185–6; Wills on Circumstantial Evidence, 276; Commonwealth v. Brailey, 134 Mass. 527.

8. The fact that Lynch and his wife spoke to one another about seeing the team on the night in question was properly admitted to fix the night. Being admissible in that view, it should have been received, although on some other ground it was objectionable. Earl v. Earl, 11 Allen, and Hill v. North, 34 Vt. 604; Commonwealth v. Piper, 120 Mass. 185; McDonald v. Savoy, 110 Mass. 49.

Bates v.
Bates v. Sha-
Folsom v. Con-

9. The testimony of Sawtelle that the track appeared to have been made by an overshoe was within the rule. ron, 45 Vt. 474; Smith v. Miles, 15 Vt. 249; cord, 46 Vt. 135; Commonwealth v. Sturtevant, supra; Commonwealth v. Pope, 103 Mass. 440.

10. All implements or articles claimed to have been used in connection with the crime may be exhibited to the jury. Wharton's Crim. Law, 731; Commonwealth v. Brown, 121 Mass. 69; Commonwealth v. Clark, 14 Gray, 419; Commonwealth v. Williams, 2 Cush. 582; Commonwealth v. Costly, 118 Mass. 1; Ind. Sup. Ct., McDonel v. State, 18 Cent. L. J. 374.

11.

A witness may testify to an indistinct recollection, the weight of such testimony being for the jury. 1 Green. Ev., e. 440 and cases cited; State v. Donovan, Ia. 16 N. W. Rep. 130; Clark v. Bigelow, 16 Me. 246; Humphries v. Parker, 52 Me. 502.

State v. Ward.

12. When it is sought to discredit a witness by showing a part of his testimony on a former trial, the whole may be developed. People v. Cox, N. Y. 1880, 10 Rep. 784, and cases there cited; Platner v. Platner, 9 Rep. 53; 25 N. Y. 170; 1 Green. on Evidence, ss. 467 and 462, note 1; Cox v. State, 8 Tex. Ap. 75; 47 Vt. 222; Roscoe's Crim. Ev., p. 103 (note) and cases cited; 1 Starkie Ev., marginal pages 208 and 210.

13. The conduct of the respondent in not taking any steps to prove his whereabouts the night of the fire and of the previous attempt until long afterwards was properly commented upon by the counsel for the State in closing. Commonwealth v. Webster, 5 Cush. 295; Rex v. Burdett, 4 Barn. & Ald. 121 and 140; Commonwealth v. Clark, 14 Gray 367; Reynolds v. Sweetzer, 15 Gray 78; Woodward v. Leavitt, 107 Mass. 453; Commonwealth v. Costly, 118 Mass. 1; 1 Wharton's Crim. Laws, s. 744; Roscoe's Crim. Ev. pp. 53 and 54; Gordon v. People, 33 N. Y. 501; Johnson v. Commonwealth, 7 Cent. Reporter, p. 608 (Pa.)

14. The jury could not have understood that the court withdrew from them the consideration whether or not the fire was a willful and malicious one, or that they could convict the respondent without finding this fact. State v. May, N. E. Rep. p. 846 (Me.); State v. Fenlason, 3 N. E. 273 (Me.); State v. McLellan, 70 Me. p. 285; People v. Biggins, 231 Reporter (Cal.)

15. The court correctly charged as to the law of alibi. Commonwealth v. Webster, 5 Cush. pp. 319 and 324; Wharton's Crim. Law, ss. 708 and 744; Fife v. Commonwealth, 29 Penn. St. 429; State v. Vincent, 24 Iowa 570; Commonwealth v. Choate, 105 Mass. 451; State v. Kline, (Sup. Ct. Iowa) 2 Cr. L. Mag. 643.

It instructed the jury that they must be satisfied beyond a reasonable doubt, taking into account the alibi evidence with all the rest, and this is the law in Vermont. State v. Cameron, 40 Vt. 555; State v. Nutley, 57 Vt. 543.