Opinion
Decided October 1, 1929.
Counsel may properly comment upon the answer of a witness though the court had ruled that the matter "may be excluded," if no testimonial use is made of the answer by counsel and his reference is merely to the language of the answer and the manner of the witness in giving it, as an incident of the trial. Counsel's description in argument of a certain paper as a "receipt" when the witness though calling it a "note" evidently meant a receipt is unexceptionable.
INDICTMENT, for breaking and entering and larceny. Trial by jury and verdict of guilty. Transferred by Oakes, J. upon the defendant's exceptions to the denial of his motions to dismiss the indictment and to the allowance of certain statements in argument by the county solicitor. The material portions of the record relating to the exceptions to argument appear below.
During the cross-examination of Otis W. Miller, a witness called by the defendant, the following proceedings took place: "Q. And how happened you to get acquainted with Mr. Hill? A. Met him at Willey's; he was going to Willey's and I met him. He came up to my place Goffstown. Q. You have had some dealings with Willey? A. I have. Q. You owe him money, don't you? A. That is none of your business. Court: That may be excluded. Mr. Rowe: None of my business? Mr. Hurley: No, it isn't. Mr. Rowe: I guess that is a good place to stop. Mr. Hurley: That is all."
During the closing argument of the county solicitor to the jury, the following proceedings took place: — "Mr. Rowe: He (respondent) brings in here a man named Miller, and when I ask him a question he says, `That is none of your business.'. . . And that is the type of man they bring in here to testify for George Hill. That is the kind of answers we get out of their star witness. He says `it is none of your business,' and snaps it out as if it was a home made expression on his part, handling himself true to form. . . . That is the type of people they bring in here, and I submit that his testimony is not worth one cent . . .; if that is the way he regards law and order then I won't listen to him, and I didn't question him afterwards, and I said to you and to everybody here, `That is a good place to stop,' if that is the way he regards the officers of this county. If that is the way he regards this Court. If that is the way he regards this proceeding here before you twelve men, then it is time to drop him and let him go his way; and he can go his way for all this solicitor cares. So I say that his testimony should be dismissed from this case, and dismissed quickly, and before you get to it. Mr. Hurley: On what grounds? Mr. Rowe: This is a matter of argument. Mr. Hurley: He told you — Mr. Rowe: This is a matter of argument, and I am within my rights arguing on this. Mr. Hurley: Well, Your Honor, here is all I got to say. The argument is all right if it is explained to the jury that that witness had a right to answer as he did. He was under no legal compulsion to answer that question. Court: Do you want the argument to stand, Brother Rowe? Mr. Rowe: It seems to me it is within my rights. Mr. Hurley: Well, if you don't want to make that explanation I will except to it. Court: You may have the exception.
"Mr. Rowe: Now I claim that it was the easiest thing in the world for this man Hill to go to Willette's house and hire his barn to leave the furniture there, and leave it there. And why is he around Manchester in the rain trying to dispose of furniture. Rainy, heavy rain, as Mr. Flanagan testified. Why is he so anxious to dispose of furniture, and why is he so anxious to get down to Mr. Willette's and have him sign a receipt when the officers are hunting for him? Mr. Hurley: No evidence of that. I except to that statement, too, Your Honor. Mr. Rowe: I think there is evidence. Court: Exception. Proceed. Mr. Rowe: Hurrying down to get his signature to something. . . ."
Other facts appear in the opinion.
Stewart Everett Rowe, solicitor (by brief and orally), for the state.
John S. Hurley, for the defendant.
Only two exceptions have been argued by the defendant, both of which relate to the argument of counsel for the state. Defendant's other exceptions are understood to have been waived and, therefore, have not been considered.
1. A witness called by the defendant, when asked upon cross-examination whether he owed money to one of the state's witnesses, replied, "That is none of your business," and the court then said, "That may be excluded." The defendant now contends that his exception to the allowance of the solicitor's comments upon the above answer should be sustained because "his argument was based on matter excluded by the Court and not part of the case."
Counsel seem to assume that the ruling of the court embodied in the words "that may be excluded" applied specifically to the answer of the witness as distinct from the question which preceded it, and was equivalent to an order that the answer be stricken from the record because it was, for some reason, inadmissible. This interpretation of the ruling can hardly be adopted. If the question which preceded it had been a proper one, there is no apparent reason why the answer, which was, in effect, a refusal to answer, should have been excluded. It seems much more probable that by this ruling the court intended to decide that the subject-matter of both question and answer, that is the financial relationship between the witness and Mr. Willey, was inadmissible because immaterial. It is unnecessary, however, to pass upon the question of the precise scope and effect of the court's action, for in any event, it was nothing more than an exclusionary ruling upon testimony, and its only effect was to forbid a testimonial use of the witness' answer.
Clearly it would have been a violation of the law of the trial to ask the jury to base a finding of fact upon a testimonial assertion which had been excluded by the court and it would have been error to permit such an argument to stand (Palmer v. Dimick, 77 N.H. 565, 567; Batchelder v. Railway, 72 N.H. 329 and cases cited); but this is not a case of that kind. In the argument set forth above, counsel was calling the attention of the jury not to a piece of testimony, but to an incident of the trial. He did not ask the jury to draw from the answer any conclusion of fact in regard to the financial relationship between the two persons referred to in the question. His comments were directed rather to the fact that the witness made an offensive answer in a contemptuous manner. His argument was that all of the witness' testimony was discredited by his behavior in the presence of the jury. In other words, the solicitor was discussing the conduct of the witness upon the stand, his appearance and manner of testifying, all of which are recognized in this state as legitimate subjects for comment. Story v. Railroad, 70 N.H. 364, 375; Preston v. Cutter, 64 N.H. 461, 469; Hilliard v. Beattie, 59 N.H. 462, 465.
2. In support of his second exception to the argument of the solicitor the defendant contends that "no testimony was given that officers were hunting for Lajoie when he went to Epping to get a signed receipt from Willette. . . . It was testimony on the part of Mr. Rowe, improperly made and highly prejudicial." An examination of the record shows that the solicitor's argument was fully supported by the evidence. Willette testified that upon the night when the defendant was arrested he came to the witness' house and tried to get him (Willette) to sign a "note," by which the witness clearly meant a receipt or bill of sale; and a deputy sheriff testified that he went to Manchester in search of the defendant just before he was taken into custody in Epping.
Exceptions overruled.
All concurred.