State v. Gaffney , 56 Vt. 451 ( 1884 )

The opinion of the court was delivered by

Nowell, J.

The respondent Gaffney not insisting on the exceptions, they were argued on behalf of the respondent Field only, who was not injured by the refusal of his challenge for cause, as he peremptorily challenged the juror and had challenges left when the panel was filled. State v. Dodson, 16 S. C. 453; Burrell v. The State, 18 Tex. 713; 3 Whart. Crim. Law, (7th ed.,) s. 3152. This is the better rule, though it is not universal. People v. Bodine, 1 Denio, 281.

The statute making it the duty of justices in the hearing of all «criminal cases to write down in substance the testimony of all witnesses testifying before them, and to file such testimony with the county clerk in cases of appeal or holding to bail, contains no provision making such minutes admissible as evidence. It is‘not even required that they be certified as correct; nor is there any provision as to what ose may be made of them. It is obvious that they are useful to acquaint the prosecuting attorney with the evidencie in the case, as well as to refresh the recollection of witnesses. Had it been the purpose to make such minutes admissible as independent evidence, the statute would have said so, as it has in the case of transcripts of stenographic notes of testimony.

The court did not, as contended, take from the jury the question of whether the respondents combined in the assault. It told the jury that there was evidence of such combination; and this was its province. Whether there be any evidence, is a question for the court; whether sufficient evidence, is a question for the jury. Buuler, J., in The Company of Carpenters v. Hayward, Dough 374; 1 Greenl. Ev. s. 49; 1 Best Ev. s. 82.

There is no error in the proceedings below, and the respondents take nothing by their exceptions.