State v. Gorham

• Citation: 55 N.H. 152
• Parties: State v. Gorham.
• Decision Date: 11 March 1875
• Court: Supreme Court of New Hampshire

55 N.H. 152

State v. Gorham.

Supreme Court of New Hampshire

March 11, 1875

An indictment (founded upon Gen. Stats., ch. 264, sec. 15) charging that the respondents, with force and arms in and upon one Stephen Lohiel, of said Hart's Location feloniously did make an assault, and him the said Stephen Lohiel in bodily fear and danger of his life then and there feloniously did put, and two bank bills for the payment of two dollars each, and of the value of two dollars each, of the national currency of the United States, and two United States treasury notes of the value of two dollars each, of the goods, chattels, and moneys of him the said Stephen Lohiel, from the person and against the will of him the said Stephen Lohiel then and there feloniously and by violence and putting in fear did steal, take, and carry away, contrary to the form of the statute," is not bad for uncertainty duplicity, or repugnancy.

An indictment, which charges the commission of an offence which in its nature includes several inferior offences, is not, for such reason, multifarious.

A single count in an indictment may allege all the circumstances necessary to constitute two different crimes where the offence described is a complicated one comprehending in itself divers circumstances, each of which is an offence.

Where goods are stolen out of the possession of a bailee, they may be described in the indictment as the property of the bailor or of the bailee, although the goods were never in the real owner's possession, but in that of the bailee merely.

Bank bills are the subject of larceny, and no other description of them is required than that employed in the portion of the indictment recited in the first paragraph of these notes.

The offence of robbery is sustained by proof of a felonious taking of property from the person of another by assault, although without putting in fear. This is equally true with reference to our statute and to the common law.

An assault is any unlawful physical force put in motion, and creating a reasonable apprehension of physical injury to a human being.

Although no fear be produced nor an apparent apprehension of it created, the assault is consummated if an actual injury be inflicted.

Any forcible taking of property from the possession of another by means which overcome resistance, however slight, is a taking by the infliction of actual injury, and so is by assault.

By the practice in this state, and by rule of court, all exceptions to the charge of the judge are considered as waived, unless taken before the jury retire

INDICTMENT, against John Gorham and William Mooney, charging the respondents with robbery from the person of one Stephen Lohiel. Plea, not guilty.

The following is a copy of the material portion of the indictment:

"The grand jurors for the state of New Hampshire, upon their oath, present, that John Gorham and William Mooney, both of Hart's Location, in the county of Carroll aforesaid, on the second day of June, in the year of our Lord one thousand eight hundred and seventy-four, at Hart's Location, in the county of Carroll aforesaid, with force and arms in and upon one Stephen Lohiel, of said Hart's Location, feloniously did make an assault, and him the said Stephen Lohiel in bodily fear and danger of his life then and there feloniously did put, and two bank bills for the payment of two dollars each, and of the value of two dollars each, of the national currency of the United States, and two United States treasury notes of the value of two dollars each, of the goods, chattels, and moneys of him the said Stephen Lohiel, from the person and against the will of him the said Stephen Lohiel then and there feloniously and by violence and putting in fear did steal, take, and carry away, contrary to the form of the statute."

The evidence on the part of the state tended to prove that on the morning of June 2, 1874, there was a "strike" among the laborers engaged in the construction of the Portland & Ogdensburg Railroad, in Hart's Location, whom the respondents joined; that this body of men, numbering some forty or fifty, went up the line of the railroad to induce another body of workmen to join them; that on their way they called at the house of one Peter Martel, where they procured and drank liquor, and became more or less intoxicated; that Martel was away from home that day, and had left his place in the charge of one Stephen Lohiel, who had been employed by him as a carpenter for some two weeks previously, but on that day was left in charge of the bar; that in the afternoon the body of strikers, including the respondents, upon their return, called at Martel's to get one of their number, who had been left there in the forenoon because too intoxicated to go with them; that Mooney asked Lohiel how much was to pay for the care of the boy, and Lohiel replied, nothing; that Mooney then said to Lohiel he wanted to whisper to him, and putting his left arm around Lohiel's neck, and his mouth to Lohiel's right ear, and pretending to whisper, he put his right hand in the upper vest pocket of Lohiel, on the left side, and took therefrom a roll of money, consisting of two bills of the denomination of two dollars, two bills of the denomination of one dollar, and some scrip, in all some seven or eight dollars, and passed it to Gorham, who was standing near at hand; that Lohiel in the struggle which ensued threw Mooney to the ground; that while they were upon the ground, Mooney being underneath, Gorham kicked him (Lohiel) in the forehead, and that others in the crowd struck him with clubs upon his body; that Lohiel did not succeed in recovering his money; and that the money so taken was money Lohiel had received that day from the sale of liquor at Martel's bar, and while in

charge of the same in the absence of Martel. Lohiel, on cross-examination, was asked if the bills taken might not have been Canada currency, or Southern Confederacy money, and he replied that he could not tell, that he could not read or write, but that he could tell figures and could count, and that the bills taken were what are called greenbacks. There was no evidence from any source that there was any assault upon Lohiel, or putting him in fear, before the taking of the money from the person of Lohiel by Mooney with his right hand, and then holding it in his hand as stated when Lohiel first saw it, nor up to the time when Mooney passed the money to Gorham from his own hand, except so far as the jury were warranted in so finding from the testimony of Lohiel and one Napoleon Briar, the only witnesses called by the state.

The respondents each testified that no assault was made by them or in their presence or within their knowledge upon Lohiel, and that they took no money from his person or custody, or from the premises, and that they knew of none being taken, and, in a word, denied the truth of the statements of the witnesses for the state.

After the solicitor had made his opening statement to the jury, and before any evidence was offered by the state, the respondents moved "that the indictment be quashed, on the ground of duplicity, uncertainty, and repugnancy." The court denied the motion, and the respondents excepted.

Lohiel, upon his examination in chief, testified as follows:

"In June, 1874, I resided in Hart's Location. I saw the respondents June 2, 1874, in the forenoon, between nine and ten. A big crowd was with them, thirty or forty * * I did not see them again till afternoon, between, four and five. They came down and into the dooryard. I lived there. Mooney wanted to know how much I should charge for the care of the boy. I said, not anything. Then he said he wanted to whisper to me; he said, 'I should like to whisper to you.' He put his left hand round my neck and right hand in my pocket. He had his mouth to my ear and pretended to whisper; put his right hand in my upper vest pocket on left side. I had two two dollar bills, two one dollar bills, and some scrip. I did not see his hand, but felt it---could not see it. When he drew his hand away I saw the money, and saw him hand it to Jack Gorham. I don't recollect as I heard him [Gorham] say anything. I can't tell what Gorham did with it. I squirmed round and tried to get hold of my money. I got Mooney down and I was on top of him. Gorham struck me on the forehead with his boot [shows mark to the jury]; he struck me on top of my head once or twice, and one or two more struck me on my body with clubs. Mooney did not strike me. I did not get my money." Before cross-examination, Lohiel testified as follows: "The same crowd came back between four and five o'clock in the afternoon. There was not quite so many; I can't tell whether there were any different ones. I know Jack Gorham was there, also Kelley, when they came. Mooney came up, and asked me how much I should ask for keep-

ing the boy. The crowd was in the road; I was in the door. Mooney came up towards me and asked how much damage for keeping the boy; he came some twelve or fifteen feet. I was looking at the folks. The shanty was twelve or fifteen feet from the road. I went out to see if Martel was coming, and the crowd came along. About half the crowd went by, when Mooney spoke and stopped; Mooney was asking how much I should ask. Gorham was a little ways down the stream, twenty or thirty feet, in the edge of the crowd. The boy was then leaning on the door not drunk, and went out and joined the crowd. Mooney then put his arm round my neck, and pretended he was going to whisper. The Frenchman had taken back his revolver half an hour before [loaned to Lohiel in the forenoon]. I had a jack-knife in my pocket, one blade. I probably had drank four or five times that day. He put his left hand round my neck; pretended to...