Bassett v. Shares. does clearly appear to say that he gave certain directions to the plaintiff to exercise the horse, which the plaintiff did not fully carry out. This was apparently new matter called out for the first time on cross-examination. The plaintiff could not then know that the defendant would claim nothing from it, and we think he had a right to show what the directions were and that he complied with them as far as was reasonably possible. The plaintiff testified that the horse in question, at the time of the injury, was in his possession under a contract with the right to purchase; that his business was that of a teamster and farmer; and that he had been obliged to hire a horse in place of the injured horse while it was laid up. He offered no testimony as to what his business was, other than the general statement aforesaid, and he made no claim that his business had been injured in any way. The defendant offered certain evidence to show that the business in which the plaintiff used his horses was that of the plaintiff's brother, E. M. Bassett. This evidence was made up mostly of receipted bills made out in the name of E. M. Bassett. The court excluded the evidence. Under the circumstances we think it was properly excluded. On the morning of the second day of the trial the plaintiff called one Smith as a witness, who testified concerning the runaway and the cause thereof. On cross-examination he was asked if he knew why he had not been called to testify the day before, when he was present in court all day and the court had adjourned for want of a witness? The record does not show on what ground the defendant claimed this evidence, and we are unable to see any good ground on which it could be claimed or that its exclusion did the defendant any harm. Clyde C. Scovill, a witness for the defendant, and the teamster who had charge of the defendant's team at the time of the injury to the plaintiff's horse, testified as follows: "You put up your seat on your board you say?" which side, the near or the off side?" in such a manner as you thought secure?" "Yes sir." "On "Off side." "And "Yes sir." This Bassett v. Shares. last question was objected to and excluded, but on what ground does not appear. It was we think properly excluded, because it called for the opinion of the witness in a case where there was apparently no necessity for so doing, and especially because it called for the statement of an opinion without a statement of the facts upon which it was based. For the same reasons, and also because it cannot under the facts stated have done the defendant any harm, we think the ruling complained of in the thirteenth assignment of errors was a proper ruling under the facts disclosed by the record. The defendant asked a witness as to the habits of said Scovill in the handling of horses, and whether he was a prudent, careful man in such matters. No claim was made by the plaintiff that the defendant in employing Scovill had employed a careless driver. This being so the evidence was ir relevant upon the question of negligence then before the jury, and it was properly excluded. Morris v. Town of East Haven, 41 Conn. 252. A witness for the defendant testified that he had seen the plaintiff's horse in a sale stable about three years before the accident, when he examined it with the view of buying it. He was asked at what price the horse was then offered for sale. The question was on objection excluded. Presumably this evidence was offered as having some bearing on the question of the value of the horse at the time of the accident. It may have had some slight bearing upon that question, but inasmuch as the defendant had full opportunity to show, and for all that the record discloses did show, the actual value of the horse at the time of the accident, the action of the court in ruling out this question, even if we grant that it was erroneous, which we do not, clearly did the defendant no harm. The defendant in his own behalf testified, in effect, that in agreeing to pay the surgeon's bill, and to let the plaintiff have the use of a horse, he had acted from motives of sympathy and humanity merely, moved thereto by the plaintiff's story of his misfortunes, and not from a sense of obligation to repair a wrong done by him, or as an admission of such State v. Hawley. wrong. To rebut this evidence the plaintiff was allowed, against the defendant's objection, to show that the defendant had brought a suit against the plaintiff to recover for the use of his horse and the amount paid to the veterinary surgeon, which was then pending. The bringing and pendency of such a suit was inconsistent with defendant's testimony upon the point in question, and the evidence objected to was relevant upon the rebuttal. The last two assignments of error are based upon the charge to the jury. As to these, it is sufficient to say that upon an examination of the charge we are unable to discover any error therein, certainly none that would entitle the defendant to a new trial. There is no error apparent on the record. In this opinion the other judges concurred. THE STATE vs. JOHN HAWLEY. New Haven & Fairfield Cos., Jan. T., 1893. ANDREWS, C. J., CARPEN- The defendant was on trial for the murder of a Mrs. Munson and an im- The threat here was not an isolated matter, but was admissible as a link 63 47 65 292 63 47 174 532 State v. Hawley. The court said to the jury-" If the prisoner is entitled, as he certainly is, to be presumed innocent until upon a full and impartial trial he has been proved guilty beyond a reasonable doubt, ought his wife to be presumed guilty when she has had no trial at all and no opportunity to offer a word in her defense ?" Held to have been harmful to the prisoner as calculated to make the impression that in the judge's mind the guilt or innocence of the wife was an important issue in the case, and that they were to convict the prisoner unless satisfied that she was guilty. And held that an allusion of the judge to Adam's attempt to throw the blame of his misconduct upon Eve, was injurious to the prisoner, as implying that the prisoner like Adam was guilty. [Argued March 9th-decided April 7th, 1893.] INDICTMENT for murder; in the Superior Court in Fairfield County. Tried to the jury on the plea of not guilty, before Fenn, J. Verdict guilty, and appeal by the defendant for errors in the rulings and charge of the court. The case is fully stated in the opinion. W. H. Williams, with whom was W. S. Downs, for the appellant. S. Fessenden, State's Attorney, for the State. CARPENTER, J. The prisoner was indicted for the murder of Mary L. Munson. The evidence against him on the trial was circumstantial. Among other things there was evidence tending to show that he was in a position in which he might have committed the murder. His wife, Flora Hawley, was also indicted, in a separate indictment, for the same offense. The defense claimed that she also was in a position in which she might have committed the murder. On the trial the accused was introduced as a witness in his own behalf. After he had been cross-examined, his counsel, on the re-direct, asked him-" Hadn't your wife said anything about Mary Munson, threatening her, anything of that kind?" This was objected to. It was admitted for the purpose of showing that his wife, previous to the day of the murder, suspected that he had had improper relations with Mrs. Munson, but was excluded for any other purpose, State v. Hawley. especially for the purpose of proving threats. Thereupon, among other things, the witness stated that "she told me if I didn't keep away from there she would break my head and Mrs. Munson's too. In the afternoon of the next day the court, referring to the foregoing objection and admission of evidence under the ruling, stated to counsel for the accused, in the presence of the jury-" On reflection, Mr. Williams, although I am inclined to think I am doing what I was unable to do yesterday, overruling the Supreme Court, in view of your claim on which the jury will pass, as to actual suspicion against this woman, I will admit without restriction any such evidence you may have, and you may call Hawley or any other witness for that." But counsel offered no other or further evidence on this subject, saying that as the testimony was in it was not necessary to repeat it. The reference in the expression, "overruling the Supreme Court," was to the case of State v. Beaudet, 53 Conn., 536. Upon the authority of that case it seems that the court below at first excluded evidence of threats, but afterwards admitted it in the manner stated. We do not think that case can be regarded as an authority for excluding evidence of threats under the circumstances of this case. In that case the prisoner was on trial for an assault with intent to murder. The assault took place in the dining room of the house of Dr. Zink, the person assaulted, a few minutes after eleven o'clock at night. It appeared that one Dougherty was in a saloon in the vicinity that evening until half past ten o'clock, intoxicated. A witness was asked "whether Dougherty upon that night in that saloon, between the hours of half past nine and half past ten, made any threats against Dr. Zink?" And another witness was asked " whether, on the day before the assault, Dougherty in his hearing made any threats against Dr. Zink?" Both questions were excluded by the court, and that ruling presented the only question for review. The court, by LOOMIS, J., said:" At the outset it should be noticed that the offer was simply to prove the threats of Dougherty against Dr. Zink. Any threats of VOL. LXIII.-4 |