171 A. 633 (N.H. 1934), State v. Thorp

Citation:171 A. 633, 86 N.H. 501
Opinion Judge:MARBLE
Party Name:State v. Sydney Thorp
Attorney:Francis W. Johnston, attorney-general and George R. Scammon, solicitor (Mr. Johnston orally), for the state. Stewart E. Rowe (by brief and orally), for the defendant.
Case Date:March 06, 1934
Court:Supreme Court of New Hampshire

Page 633

171 A. 633 (N.H. 1934)

86 N.H. 501



Sydney Thorp

Supreme Court of New Hampshire

March 6, 1934

Page 634

[Copyrighted Material Omitted]

Page 635

Exceptions overruled.


INDICTMENT, for murder in the first degree. Trial by jury and verdict of guilty, with capital punishment.

The state's evidence tended to prove that the defendant, on Sunday evening, February 5, 1933, killed Joseph Trudeau by striking him over the head with a black jack. Trudeau was working in Hersey's bakery at the corner of Daniel and Penhallow streets in Portsmouth. Blood stains on the linoleum which covered the floors of the bakery indicated that body had been dragged from the front door through the wrapping room, so-called, to the oven room, where it was found. The defendant's shoes had rubber heels on which was stamped a trademark consisting of a shield and the word "Regent." There were also distinctive marks on the soles of the shoes. The footprints on the blood-stained linoleum matched the soles and heels of these shoes.

The alleged motive was robbery. Trudeau had had money that afternoon, but neither his money nor his pocketbook was found on his person after his death, and the pockets of his trousers were turned inside out. The defendant had no money at six o'clock that night and begged his supper from a stranger. The crime was committed shortly before seven o'clock. A half hour later the defendant entered the office of a motor-bus line and purchased a ticket to Boston.

He arrived in Lynn, Massachusetts, at 12:30 that night and hired a room in a lodging house where he had previously roomed, paying the rent in advance. He made numerous purchases the next day, and when he was arrested, three days later, he had about thirteen dollars in his possession. A black jack, which he admitted owning, was found in his room. His shoes had been recently polished, but a chemical analysis revealed blood on one of the shoestrings. There were also blood spots on the cuffs and legs of his trousers. Further facts appear in the opinion.

Exceptions were taken to various orders and rulings of the court, to the admission and exclusion of evidence, to the attorney-general's argument to the jury, and to the charge. The presiding justice declined to instruct the jury concerning the lesser degrees of homicide on the ground that the request for this instruction was not made until the close of the arguments. Rule 52, 78 N.H. 697.

A bill of exceptions was allowed by James, J.

Francis W. Johnston, attorney-general and George R. Scammon, solicitor (Mr. Johnston orally), for the state.

Stewart E. Rowe (by brief and orally), for the defendant.

All concurred.



Page 636

[86 N.H. 503] "All murder committed... in perpetrating or attempting to perpetrate... robbery or burglary, is murder of the first degree." P. L., c. 392, s. 1. "The punishment of murder in the first degree shall be death or imprisonment for life, as the jury may determine.... If the jury shall find the respondent guilty of murder in the first degree, the punishment shall be life imprisonment unless the jury shall add to their verdict the words, with capital punishment." P. L., c. 392, s. 4. Robbery is the felonious taking of property [86 N.H. 504] from the person of another by force. State v. Iacavone, 85 N.H. 207, 208, 155 A. 701; State v. Gorham, 55 N.H. 152, 166.

The court did not err in refusing to instruct the jury that they might find the defendant guilty of a lower grade of homicide than that of first-degree murder (even assuming the request to so charge had been seasonably made), since there was no evidence from which second-degree murder or manslaughter could reasonably be inferred. McCutcheon v. State, 199 Ind. 247, 257, 155 N.E. 544; People v. Utter, 217 Mich. 74, 88, 185 N.W. 830; State v. Messino, 325 Mo. 743, 769, 30 S.W.2d 750; Wever v. State, 121 Neb. 816, 820, 238 N.W. 736; State v. Giampietro, 107 N.J.L. 120, 122, 150 A. 367; People v. Chapman, 224 N.Y. 463, 479, 121 N.E. 381; Commonwealth v. Hadok, 313 Pa. 110, 115, 169 A. 111; State v. Whitfield, 129 Wash. 134, 141, 224 P. 559.

The defendant denied killing Trudeau or being present at Hersey's bakery at all. The state's evidence was all to the effect that he entered the bakery for the purpose of robbing Trudeau and that he killed him while accomplishing that purpose. "Intent not being an element of the crime of murder in the first degree, when committed under such circumstances, there was no room for the exercise of a power to find the defendant guilty of a lesser degree of felonious homicide depending upon the existence or non-existence of deliberation and premeditation." People v. Schleiman, 197 N.Y. 383, 390, 90 N.E. 950.

In People v. Moran, 246 N.Y. 100, 102, 103, 158 N.E. 35, Cardozo, C. J., says: "The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e.g., robbery or larceny or burglary or rape. Cases are found at times where the inculpatory facts are susceptible of one interpretation only: either the one accused was engaged in an independent felony at the time of the killing, or he did not kill at all. In such conditions the law does not say that other forms or grades of homicide shall be submitted to the jury."

"The evidence shows, without contradiction, that the murder was committed in the perpetration of a robbery.... The only defense was that the defendant was not present

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and was not participating in the crime. If [defendant]... was present, participating in the crime... he was guilty of murder in the first degree, and if not present... he should have been acquitted." Lutes v. State, 37 Ohio App. 353, 364, 365, 174 N.E. 745. Cases on the subject are collected in 30 C. J. 403.

The contention that in murder cases the jury should be permitted to exercise leniency without restriction is untenable. "The proposition...

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