State v. Ward. petrator, facts tending to show a motive, though remote, are admissible." Summerville v. State, 6 Tex. app. 433. This is not controverted by defendant's counsel, but it was the character of the evidence admitted to show the motive, which they criticised. We think the evidence admitted was legitimate, as tending to show facts from which the motive might be found by the jury. α. The testimony of Foster as to the relations existing between Miss Amsden, and himself and wife was certainly pertinent, and the objection that the details of the relations were given, is not borne out by the record, for he was directed to state what they were "without going into the details" and a careful scanning of the exceptions pp. 8 and 9 fails to disclose an instance of his having done so. The testimony of Olivia that she had informed Ward of what the Fosters had said to her about him, and her being with him, was material to show knowledge on his part of their objection to her relations with him. We think that whatever the Fosters said to her about Ward, which she communicated to him, was legitimate upon the question of motive. The objection was general and the testimony being proper for one purpose there was no error in admitting it, it not appearing that it was used for any other purpose. What the Fosters said, it being communicated to Ward, in reference to Olivia's relations with him, was evidence upon one of the material issues of the trial, and the case therefore, unlike Campbell v. State, 8 Tex. Ap. 84, cited by respondent where it was held error for a witness to testify that he told the defendant what his neighbors thought about a matter in controversy. What his neighbors thought was wholly irrelevant, as any instance of hearsay upon an immaterial matter would be. b. The letter which the testimony tended to show was written by Ward to Olivia's sister, was strong evidence to show the relations theretofore existing between Ward and Olivia, and Ward's knowledge or belief that the Fosters influenced her. against him. State v. Ward. C. The evidence of Olivia in regard to her conversation with Ward at the railroad station was admitted upon the question of Ward's connection with the team. It tended to show an admission by him that he had the team both nights and so far as the case shows was used for that purpose only, and was in every respect legitimate. d. The letters and postal cards had a tendency to show the past intimate relations of Olivia with the respondent, the termination of them against his will, and threats against Olivia, and were material upon question of motive. 11. In the early part of the trial some inquiries indicated that a claim might be made that Foster burned the buildings for the purpose of procuring the insurance money; in view of this fact it was permissible to show what his conduct was at the fire. The fact that he might feign conduct for the purpose of deceiving the bystanders would not determine the question of its competency. If he had fired the buildings the less likely he would be to burn himself in fighting the fire, and his conduct and acts at the fire might be very significant, in the eyes of the jury, upon that question. 12. In view of the same claim it was proper to show the value of the buildings destroyed, but the value of the land of Foster was a collateral fact and therefore immaterial. In the cases cited to sustain this point, Wood v. McGuire, 17 Geo. 318,, and Hyland v. Miller, 99 Ind. 309, the error consisted in depriving the excepting parties of the cross-examination of witnesses to material facts. 13. The witness Osgood testified that he heard a team pass Wilson's house on the night of the 29th December; he was at Wilson's house several nights both before and after the 29th, and the evidence tended to show that the team passed the night one Ryan was his co-watcher. We think it was proper in testing his accuracy as a witness to ask him whether that was the only night he heard a team pass. The fact that he heard a team pass but one night, and that its passage was spoken of by him and Ryan at the time might in connection with the other circum State v. Ward. stances, enable the jurors to determine whether it was the night of the 29th or of some other day, that the team passed. 14. The question asked Streeter was not objected to until the answer had been given. There is nothing in the record to show that the question was answered before an objection could have been interposed, and we should not presume it, upon suggestion of counsel. Whether the question was improper we are not called upon to decide. 18. The testimony of the State tended to show that the person who set the fire took a team from the stable in St. Johnshury, drove to the Noyesville road in Walden, then on the Hazen and Goodenough roads to a point on the latter, where he left the team, went to the Foster buildings, fired them, went back to the sleigh, turned it about, and returned to St. Johnsbury, by the same route over which he traveled in going from it; that in going to the place where the team was left in the road, in passing from one road to the other a sharp angle was turned in each instance. Under exception the State was permitted to show that the horse, driven over the same route within four days after the fire, left to itself and without guidance, instead of passing the two roads, at the point of junction, voluntarily made the turns conforming to the route leading to the tracks and place of turning on the Goodenough road. Was the admission of this testimony error, or, in other words, was this testimony evidence in the strict sense of the term?"The word evidence is applied to that which renders evident" and is defined to be any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact. Best on Evidence, s. 11. "Does the fact that when the horse was driven into the vicinity of Foster's on Saturday, he voluntarily left the road upon which he was traveling and turned into the Hazen and Goodenough roads, have a tendency to produce in the mind a persuasion that he had been there the prior Wednesday? If so it was evidence of the fact. The testimony tended to show that the horse had the habit of turning into premises and roads where he had before been driven, State v. Ward. and every one familiar with horses is aware of their constant habit and custom in that respect; so much so that they can often be trusted to go without drivers in such places. We think the testimony had a tendency to create in the mind a persuasion: that the horse had been there before; to render that fact evident.: The question is not how strong a persuasion, but had it a tendency to create any?. We think the invariable. answer would be yes, and the testimony was properly admitted. 19. The witness Clutier testified that the respondent had the team the night of the attempt to burn Foster's buildings, and what was said by him about it when he returned it; and that he testified before the justice upon the same matter. It was material to show what he testified to before the justice in connection with admissions which it was claimed the respondent made. The court then permitted counsel for the State to ask if he testified before the justice substantially as he had upon trial. In this there was no error, although the respondent would have had the right to have the details of his former testimony given, if he requested it. If leading the court had a right to permit it. 20. Testimony for the respondent tended to show that at nine or half past nine o'clock, the night of the fire, he was at Littleton, N. H. Lynch testified that he saw a horse in respondent's barn at about six o'clock one evening, and Lynch's wife testified she saw the respondent at his barn harnessing a horse at about nine o'clock one evening. And that at a later hour that evening the horse was gone. Testimony tending to show that the fact that the horse was there, at respondent's barn, and was afterwards taken out, was spoken of between Lynch and his wife, the evening that each testified they saw the horse there, was objected to and admitted under exception. The fact that they had conversation about the horse would tend to show that they were testifying about the same evening, and for that purpose was admissible. For that purpose the details of a conversation are sometimes held admissible. Earle v. Earle, 11 Allen 1; Hill v. North, 34 Vt. 604. Testimony of a like character was held inadmissible in Whitney v. Houghton, 125 Mass. 451, but it was State v. Ward. upon the ground that declarations by a party in his own favor could not be shown. If the testimony in this case was inadmissible, whether the court erred in charging it out of the case, we do not pass upon. 21, 25, 26. The testimony of Montgomery, Smith and Sulloway, mentioned in these points, was clearly admissible upon. the question of identifying the sleigh. 23. It was not error to permit the witness Drouin to exhibit an overshoe. He had testified that he sold the respondent one the year before, of the same size and width of the one shown; there was testimony in the case tending to show the length and width of the track which, it was claimed, was made by the respondent, near Foster's house, the night of the fire. In connection with this testimony it was proper to exhibit the overshoe. It would enable the jurors to judge whether the tracks described could have been made by the respondent. 24. The respondent further insists that there was error in admitting as evidence the sleigh, lard pail, candles, beets and the newspaper, upon the ground that there was no evidence tending to connect the respondent with the same. We have held, under point eight, that the evidence tended to connect him with the attempt to burn the buildings in December, and it tended in like degree to connect him with the articles used upon that occasion, and with the sleigh and newspaper; these articles having been used in connection with the commission of the crime and the prior attempt to commit it, or by the perpetrator of it, were properly placed before the jury for their inspection in connection. with the other testimony. 27. Sulloway testified that he did not know that Ward had used a hitching weight, but his impression was that he had seen him use one. His testimony indicated that the fact was impressed with some strength upon his mind, not amounting, however, to positive assurance. Witnesses often say, "That is my impres sion," "I think so," "I'll not positively say so, but that is my impression." We think it competent testimony; the fainter the impression the less weight it should have. Clark v. Bigelow, 16 Me. 246; Humphries v. Parker, 53 Me. 502. |