State v. Thorp

Decision Date06 March 1934
PartiesSTATE v. THORP.
CourtNew Hampshire Supreme Court

[Copyrighted material omitted.]

Transferred from Superior Court, Rockingham County; James, Judge.

Sydney Thorp was convicted of murder in the first degree, with capital punishment, and the case was transferred on his exceptions.

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 blackjack. 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 the 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 trade-mark consisting of a shield and the word "Regent." There were also distinctive marks on the soles of the shoes. The foot prints 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 6 o'clock that night and begged his supper from a stranger. The crime was committed shortly before 7 o'clock. A half hour later the defendant entered the office of a motorbus line and purchased a ticket to Boston.

He arrived in Lynn, Mass., 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 $13 in his possession. A blackjack, 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 shoe strings. 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.

Francis W. Johnston, Atty. Gen., and George R. Scammon, of Exeter, for the State.

Stewart E. Rowe, of Portsmouth, for defendant.

MARBLE, Justice.

"All murder committed * * * in perpetrating or attempting to perpetrate * * * robbery or burglary, is murder of the first degree." Pub. Laws, c. 392, § 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." Pub. Laws c. 392, § 4. "Robbery" is the felonious taking of property 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, 106.

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. Law, 120, 122, 150 A. 367; People v. Chapman, 224 N. Y. 463, 479, 121 N. E. 381; Commonwealth v. Hadok, 313 Pa. 110, 169 A. 111, 113; 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 nonexistence of deliberation and premeditation." People v. Schleiman, 197 N. Y. 383, 390, 90 N. E. 950, 953, 27 L. R. A. (N. S.) 1075, 18 Ann. Cas. 588.

In People v. Moran, 246 N. Y. 100, 102, 103, 158 N. E. 35, 36, 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 and was not participating in the crime. If * * * present, participating in the crime * * * he was guilty of murder in the first degree, and, if not present * * * he should hare been acquitted." Lutes v. State, 37 Ohio App. 353, 364, 365, 174 N. E. 745, 749.

Oases 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 that a judge administering justice in criminal cases commits an error * * * by failing to tell a jury that they may * * * find a verdict unwarranted by the evidence * * * would lead to a perversion of justice." State v. Young, 67 N. J. Law, 223, 234, 51 A. 939, 943. Furthermore, since the jury in the present case declined to exercise such leniency as the statute allowed, it is difficult to understand how the defendant could possibly have been harmed by the refusal to grant his request, even if legally entitled to the instruction asked for.

While preparing the ease for trial, defendant's counsel filed a written motion asking leave to employ an expert at the expense of the state to examine the clothing on which the state claimed there were blood stains. This motion was granted on condition that the examination be made in New Hampshire. Conceding the court's power to grant the motion, certainly the requirement that important exhibits be kept within the jurisdiction did not constitute an abuse of discretion. Moreover, if analysis outside the state was essential to the preparation of the defense, that fact, so far as the record discloses, was not brought to the attention of the court until the day of the trial when exception to the court's order was first taken. Ordinarily an exception is held to be waived unless taken at the earliest opportunity. Foss v. Strafford, 25 N. H. 78; State v. Raymond, 27 N. H. 388, 403; Peebles v. Rand, 43 N. H. 337, 342.

Since the defendant did not avail himself of the privilege granted, it is unnecessary to consider his objection to the introduction of the clothing as an exhibit at the trial on the alleged ground that the chemist who analyzed the blood for the state had not left an adequate amount of material for another expert to examine.

"Every person indicted for an offense the punishment of which may be death shall be entitled to * * * a list of the witnesses to be used * * * with the place of abode of each, to be delivered to him twenty-four hours before the trial." Pub. Laws, c. 368, § 1.

The street address of a witness said to live in Boston did not appear on the state's list The object of the list was "to inform the respondent, with reasonable certainty," what persons were "to be called to testify against him." State v. Burke, 54 N. H. 92, 94. In the case of Lord v. State, 18 N. H. 173, cited by the respondent, it was held that the words "Dover, N. H." sufficiently stated "the place of abode of the witness." Obviously this case does not support the respondent's contention. It is enough to say, however, that no prejudice could have resulted, since the witness in question did not testify.

Extrajudicial statements of the defendant from which an inference of guilt might be drawn were admissible. State v. Wright, 68 N. H. 351, 44 A. 519. Assuming that it was essential for the state to show the voluntary character of the admissions made by the defendant after his arrest the evidence justified the preliminary finding that the defendant was properly cautioned.

The presiding justice did not err in overruling the defendant's objections to certain alleged leading questions. Hening's Digest, pp. 670, 671.

Some days before the commission of the crime, Trudeau and the defendant were eating at the same lunch counter. When Trudeau had finished his lunch he took out his pocketbook and asked the waitress to change a $10 bill. After he had left the restaurant the defendant inquired who he was and commented on the fact that he had "quite a number of bills. The contention that it was just a surmise as to whether or not the defendant heard the conversation concerning the $10 bill does not merit serious discussion.

This is equally true of the exceptions to the admission and exclusion of certain opinion evidence.

A witness who worked for the Kittery Tire Company in Kittery, Me., less than a mile from Portsmouth, stated that the defendant stood around his shop on the afternoon of ...

To continue reading

Request your trial
22 cases
  • State v. Coolidge, 5514
    • United States
    • Supreme Court of New Hampshire
    • 30 Julio 1969
    ...be found incredible. His acknowledged activities in the week which followed January 13 warranted an inference of guilt. State v. Thorp, 86 N.H. 501, 507, 171 A. 633, 172 A. There was evidence that the victim died within two to four hours of her last meal, and expert testimony to warrant a f......
  • Com. v. Dickerson
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 20 Junio 1977
    ...later decisions in Commonwealth v. Porter, 10 Met. 263 (1845), and Commonwealth v. Anthes, 5 Gray 185 (1855). In State v. Thorp, 86 N.H. 501, 504-505, 171 A. 633, 636 (1934), the court interpreted the statute permitting the jury to determine degrees of murder, and rejected an argument that ......
  • United States v. Stifel, 19958.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 29 Octubre 1970
    ...of the significance of the findings. The issue so presented was one which was properly submitted to the jury for decision. State v. Thorp, 86 N.H. 501, 507, 171 A. 633, 172 A. 879. Essentially, as in the case of Dr. Harrison\'s matching tests, the issue involved the `mathematical theory of ......
  • Com. v. Brown
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 7 Agosto 1984
    ...Blackwell v. State, 278 Md. 466, 476-478, 365 A.2d 545 (1976); Jackson v. State, 558 S.W.2d 816, 818 (Mo.Ct.App.1977); State v. Thorp, 86 N.H. 501, 504, 171 A. 633 (1934); State v. Covington, 290 N.C. 313, 346, 226 S.E.2d 629 (1976); State v. Saccoccio, 50 R.I. 356, 360-361, 147 A. 878 (192......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT