People v. Parton

By the Court, McKinstry, J.: We cannot say that the evidence is insufficient to sustain the verdict.

The Court below denied the request of defendant’s counsel further to cross-examine the prosecutrix—“on the grounds that the people had rested their case,” and further ruled, that “if the defendant recalled the prosecutrix, he must do so as his own witness.” These were hardly sufficient reasons for denying defendant’s request; if he had chosen to make his own witness of the prosecutrix—who had already sworn to his commission of a rape—he could have done so without first asking permission of the Court. The defendant, however, did further examine the prosecutrix, and on such further examination, a question was put to the witness in respect to her conduct immediately after she was released—as alleged by her—from the grasp of defendant; a matter as to which she had already been fully examined. It is plain, from the bill of exceptions, that this was the matter as to which defendant’s counsel had desired further to cross-examine the witness. But this was not a point that had arisen after the prosecutrix had left the witness-stand. The mere fact that the witness, Mrs. Baker, had testified to certain occurrences, and in her relation of them had differed (as claimed by defendant), from the account, of the prosecutrix, did not authorize a reexamination of the latter in respect to the same occurrences. Perhaps the County Court should have permitted the recall of the prosecutrix for further cross-examination, defendant’s counsel having stated that it should have reference solely to new matter. But the refusal did not injure the defendant, because the result would have been the same. His cross-examination would have been stayed when it appeared that it was addressed to matter already inquired into. That the alleged error of the Court did not injure the defendant, is none the less apparent because the [637]facts showing it were developed in what seems to have been considered a direct and not a cross-examination.

It wa§ not error to exclude the matter embraced in defendant’s “offer” with respect to the conduct of the husbands of two of the witnesses for the prosecution.

In a case cited by appellant, one of the Judges of the Court of Exchequer expressed an opinion that, in some cases, the hostility of a witness to a party might be proved independently of any question in respect thereto having been put to the witness: “Although,” he added, “it is only just and reasonable that the question should be put.” (Attorney-General v. Hitchcock, 1 Exq. 108.) The offer of defendant was made as of evidence “tending to prove a conspiracy on the part of Mr. and Mrs. Kirby and Mr. and Mrs. Baker and defendant’s wife, falsely to prosecute the defendant.” Assuming that evidence of such conspiracy would be admissible, neither Mr. Kirby nor Mr. Baker was a witness, and the only circumstance relied on as connecting Mrs. Kirby and Mrs. Baker .with the conspiracy, was that they were the wives of two of the alleged conspirators. This was too remote. Upon like reasoning, it might be claimed that evidence should be admitted of a mere distant relationship, or of a friendship more or less intimate, between a witness and one occupying a hostile position to a party. There is nothing in the relation of husband and wife from which it can be inferred that the latter is a party to an offense committed by the former, or which directly tends to prove her a party. Proof of the relationship alone would not make a case to go to a jury against a wife, however strong the case against the husband. The offer of defendant was properly rejected, there being no statement therein of the existence of such evidence of complicity on the part of the witnesses in the alleged conspiracy as would have justified a Court (if the witnesses had been on trial for the crime,) in submitting the question of their guilt to a jury.