Opinion
No. 3186.
Decided March 4, 1941.
A motion to set aside a verdict as against the law and the evidence presents no question not saved by exceptions during the trial.
The trial court's finding that inadequacy of the weight of the evidence was not proved is to be upheld where examination of the evidence does not demand the conclusion of inadequate weight.
No abuse of the court's discretion to ask questions of witnesses was shown by the question, why seasonable reports from an employer were required; for the unemployment compensation act empowers the Commissioner to demand reports from employers. The question merely called for explanation of the duty of the Commissioner under c. 99, s. 45 of Laws 1935.
Evidence that a civil suit had been brought by the State to enforce payment by an employer of contributions to the unemployment insurance fund is immaterial to show the defendant's innocence or the weakness of the State's case upon trial of an indictment upon Laws 1935, c. 99, s. 55 for not making the payments and furnishing the reports required thereby.
The contention that a statute is unconstitutional will not be considered where this court is evenly divided upon the question whether the contention was seasonably made.
INFORMATION, charging wilful failure to make unemployment compensation payments and to furnish reports, in violation of Laws 1935, c. 99, s. 55. A jury found the defendant guilty. He excepted to the denial of his motion to set aside the verdict as against the law, the evidence and the weight of the evidence, to the court's interrogation of witnesses, and to the court's remarks to the jury during the argument of his counsel. He also excepted to the denial of his motion for a directed verdict on the ground that the Unemployment Compensation Act (Laws 1935, c. 99) is unconstitutional. A bill of exceptions was allowed by Lorimer, J.
Frank R. Kenison, Attorney-General, and Dixon H. Turcott, by brief, for the State.
Faulkner Bell, for the defendant, furnished no brief.
I. The motion to set aside the verdict as against the law and the evidence presented no question not saved by special exceptions taken seasonably during the trial (Shea v. Manchester, 89 N.H. 547, 549, and cases cited). As no such exceptions, with a possible qualification hereinafter mentioned, are reserved, the law of the trial became final. On the ground that the verdict was against the weight of the evidence, the trial court's finding that inadequacy of weight was not proved is to be upheld if it is sustainable. Wisutskie v. Malouin, 88 N.H. 242, 246. Examination of the evidence does not require the conclusion of inadequate weight.
II. The court inquired of a witness for the State why seasonable reports from an employer were required to be furnished. The commissioner administering the act is empowered by it (s. 45) to require reports deemed by him necessary for effective administration of the act. It was therefore proper to show that the order for reports from the defendant was one which might be regarded to be of reasonable service in enforcement of the act. Abuse of the court's discretion in making the inquiry is not a required conclusion. State v. Davis, 83 N.H. 435, 436.
III. In argument for the defendant it was asserted that because he considered the act unwise, because he was unable to contribute to the fund, the State sought that "he should be branded a criminal, and on top of it all, they attach his insurance money." On objection to the remark about an attachment, the court instructed the jury that it might be considered only "to show what the State has done to collect what is due." The instruction was sufficiently favorable to the defendant. The evidence that a civil suit had been brought by the State had no bearing to indicate the defendant's innocence or weakness in proof of his guilt.
IV. Respecting the motion for a directed verdict, the court is equally divided upon the question whether the ground assigned for it may be considered in view of the failure either to move to quash the information or to demur to it, seasonably before the trial.
Exceptions overruled.