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State v. Hawley.

Flora Hawley to be presumed guilty when she has had no trial at all, and no opportunity to say a word or offer a word in her own defense?" What would the jury be likely to understand from that? Surely that in the mind of the judge the guilt or innocence of Flora Hawley was an important issue in this case. The danger is that they understood further that they must convict John Hawley unless the evidence satisfied them that Flora Hawley was guilty; thus converting the legal presumption of Flora Hawley's innocence into a presumption of John Hawley's guilt.

But passing to the next paragraph. The court says: "If Flora Hawley was on trial before you, as John Hawley is and she is not, how long would you hesitate on the evidence before you, and with no opportunity on her part to add to it, in rendering your verdict? And can there be any doubt as to what that verdict would be?" Here again, and all through this paragraph, the idea is kept distinctly and prominently before the jury that the guilt of Flora Hawley must be proved before any evidence tending to criminate her could be of any benefit to her husband.

We pause to observe that it has not escaped our notice that, even if the view taken by the court below was correct, this part of the charge was objectionable as being argumentative on a pure question of fact, and that too against the prisoner. The charge does not purport to state the claim of counsel for the state, but is apparently an argument by the court, which could not fail to have a powerful influence with the jury. The most zealous advocate for Flora Hawley could not have argued the case in her behalf more effectively. As to the merit of the argument, aside from its ability, we have nothing to say; but when we consider that it tended strongly to convict John Hawley, we fear that there is too much reason for the criticism of the prisoner's counsel, that the court "intimated its opinion to the jury upon the questions of fact involved in the trial, and upon claims in behalf of the accused as to such questions of fact."

Moreover, the charge seems to be in violation of the spirit of the statute § 1630, which is as follows:-" The court shall

State v. Hawley.

state its opinion to the jury upon all questions of law arising in the trial of a criminal cause, and submit to their consideration both the law and the facts, without any direction how to find their verdict." The jury may have taken this part of the charge as an intimation that they should find on this question of fact against the prisoner.

But to return. We are forced to the conclusion that the court misconceived the legitimate force and effect of the testimony which tended to incriminate Mrs. Hawley. The evidence against the prisoner was circumstantial. One circumstance was that he was in a position in which he might have committed the crime. To weaken the force of this circumstance the defense attempted to prove that Mrs. Hawley was also in a position to do it, accompanied with evidence that she had threatened to do it, and other evidence which they claimed proved that she had a motive for doing it, and there was also evidence of some circumstances which had more or less tendency to prove that she did in fact do it.

The primary object of this testimony was, not to prove the guilt of Flora Hawley, but to disprove the guilt of John Hawley. If it raised a reasonable doubt of his guilt it accomplished its object. Now had that evidence been submitted to the jury in that form, and for that simple purpose, all that part of the charge we are now considering would have been inapplicable and inappropriate, and the evidence, under proper instructions, would have had its legitimate effect. Instead of that the evidence was so submitted to the jury that it may have given them the impression that its only purpose and object was to prove the guilt of Mrs. Hawley. And when they saw from the charge that, in the opinion of the court, it failed to prove that, they probably dismissed it altogether, thus practically eliminating it from the case. It requires no argument to show that the course taken may have been, and probably was, very damaging to the defense.

There is one aspect of this case that perhaps we ought to notice in this connection. It may be that guilt lies between John and Flora Hawley. If both are not guilty it may be

State v. Hawley.

difficult to ascertain which one is. The court below manifested a commendable solicitude lest justice might ultimately be defeated, and lest Flora Hawley's right to an impartial trial might be unduly impaired. We desire simply to say that we believe it is possible, and entirely feasible, to give to each of the suspected parties a fair and impartial trial, giving to each every advantage which by law he or she is entitled to. The state cannot afford to convict, even the guilty, except by the well-established rules of law. It is not so important to convict somebody as it is that the guilty only, and not the innocent, should be convicted.

The reference in the charge to Adam seems to us to involve an intimation, somewhat obscure perhaps, that the court regarded John Hawley as guilty. Such an intimation in a capital case is a just cause of complaint. If not made on the assumption of guilt, then the cases are not parallel. Adam and Eve were both guilty. Adam, confessing his guilt, sought to escape responsibility by casting blame on Eve.

In this case it may be assumed that one is guilty and that the other is not. The innocent one may with propriety claim that the other is the guilty one. When John Hawley is on trial he is entitled to make this defense, as much so as he would have been if the other suspected party had been a stranger instead of his wife. We fear that the only effect. of the reference was to excite in the minds of the jury a prejudice against the accused. If so, who can say that he was not injured thereby?

We feel constrained to hold that there is error, and that the accused is entitled to a new trial.

In this opinion the other judges concurred.

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Dexter v. Evans.

EDWARD DEXTER, ADMINISTRATOR, v8. ELIZA K. EVANS

AND OTHERS.

Hartford Dist., March T., 1893. ANDREWS, C. J., CARPENTER, TOR-
RANCE, FENN and BALDWIN, Js.

A testator having provided for the support of his widow, gave her four separate legacies of $500 each, in each case "for her to help" a certain relative named "as she sees fit." The will then proceeded as follows: "At the decease of my wife the remainder of the above legacies to go to W, who will do by his mother and uncle as he may see fit, and also to see that R and J are comfortably provided for during their life-time, unless my wife sees fit to make a will and dispose of the remainder of these legacies differently, then they go as she wills." The four beneficiaries under this clause were the same ones for whose benefit the legacies of $500 had been given to the widow. One of them had died since the death of the testator. There then followed several other legacies, closing with the following:-"I give to my wife $500 for her to use as she may see fit in caring for C." Held

1. That the widow took the five legacies as a trustee, and each upon a sepa-
rate trust.

2. That in the case of the legacy to a beneficiary who had died, the amount
remaining unexpended at her death should be invested and the accu-
mulations added to the principal during the life-time of the trustee.
3. That the widow had full discretion whether to expend the other legacies
in advance in helping the respective beneficiaries or to expend them in
part and invest the balance, expending therefrom in a similar man-
ner from time to time as she should see fit.

4 That before entering on either of the trusts she should give a probate
bond.

5. That should she decline either trust the probate court could designate a successor to hold during her life, whose duty it would be to apply the money for the help of the beneficiaries as the widow should from time to time direct.

6. That the widow had power by her will to appoint a trustee of the residue of all or any of the four legacies first given and to prescribe any reasonable mode of applying the same for helping the beneficiaries.

7. That if she should fail to execute this power W would upon her death take the unexpended balance of the four legacies as one common fund, in trust to apply the same for the benefit of the persons named at his discretion.

8. That the words "who will do by his mother and uncle as he may see fit," while precatory in form were mandatory in effect.

9. That the provision that the unexpended balance of the four legacies should go to Win trust after the widow's death, unless she should

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see fit to make a will and dispose of it differently," was to be limited

Dexter v. Evans.

in its effect to the manner of accomplishing the purposes of the trust, and could not defeat the trust.

10. That in the case of the last bequest, to be used "in caring for C," if C should survive the widow and any balance of the bequest then remain unexpended, a new trustee should be appointed to expend it in caring for C according to her need.

11. That if there should be any failure on the part of the trustee to exercise an honest discretion in favor of the several beneficiaries, they could obtain relief either from the probate court or in an equitable suit. 12. But that in determining the necessity of any beneficiary, the discretion of the widow, or of W if she failed to appoint her successor, if exercised honestly, would control.

13. That any balance of the five legacies, not finally expended, would go into the residuary estate of the testator.

[Argued March 7th-decided April 7th, 1893.]

SUIT for the construction of a will; brought to the Superior Court in Windham County. Facts found and case reserved for advice. The case is fully stated in the opinion.

E. M. Warner, for the defendants Archibald, Rachel and Walter P. White.

M. A. Shumway, for the defendant Eliza K. Evans.

BALDWIN, J. The testator, in the will which is the subject of this action, after a bequest to his wife "for her support in lieu of dower," proceeds as follows:

"I give to my beloved wife, Eliza K. Evans, five hundred dollars, for her to help her sister Catherine White, as she sees fit. I also give to my beloved wife five hundred dollars for her to help her sister Rachel Kennedy, as she sees fit. I also give Eliza K. Evans, my beloved wife, five hundred dollars, for her to help her sister Julia Eddy, as she may see fit. I also give Eliza K. Evans, my beloved wife, five hundred dollars, for her to help her brother Archibald Kennedy, as she may see fit. At the decease of my beloved wife the remainder and residue of the above legacies to go to Walter P. White, who will do by his mother and uncle as he may see fit, and also to see that Rachel Kennedy and Julia Eddy are comfortably provided for during their

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