Rogers v. State

• Citation: 77 Vt. 454,61 A. 489
• Parties: ROGERS v. STATE.
• Decision Date: 02 June 1905
• Court: United States State Supreme Court of Vermont

61 A. 489

77 Vt. 454

ROGERS

v. STATE.

Supreme Court of Vermont.

June 2, 1905.

Petition by Mary M. Rogers, convicted of murder in the first degree, for a new trial, as provided by St. 1894, § 1602. Denied.

Argued before ROWELL, C. J., and TYLER, MUXSOX, START, WATSOX, HASELTOX, and POWERS, JJ.

Thomas W. Moloney and Senter & Senter, for petitioner. Clarke C. Pitts, Atty. Gen., and Wm. R. Daley, State's Atty., for the State.

WATSON, J. The petitioner, Mary M. Rogers, seeks a new trial on the ground, of newly discovered evidence. At the June term, 1903, of Bennington county court, she was indicted for murder, charged with the killing of her husband, Marcus Rogers, at Bennington, on August 12, 1902. At the December term, 1903, she was tried, and convicted of murder in the first degree. Judgment was rendered on the verdict, and sentence was imposed according to law.

At the trial Leon Perham, of Bennington, a confessed accomplice, was called as a witness by the state, and, after being advised fully by the court concerning his rights and privileges under the law as to giving evidence which would tend to incriminate himself, and that if he gave such evidence it might be used against him in any trial he might have growing out of the matter, gave testimony, in substance: That he was 19 years of age, and first became acquainted with the petitioner when she came to the house of his parents to room and board about two years before the time of the trial. That Marcus Rogers came there when the petitioner was rooming and boarding there, which was the first time the witness ever saw him. That about a week before the homicide the petitioner spoke to the witness, saying that she wanted him to "hire a rig and go to Hoosick Corners" with her to make a date. That "this fellow has a life insurance of $1,000," and she wanted to get rid of him to get the insurance money. That she wanted to make a date with him to be on such a night beside the river; and she said to the witness, "Get him beside the river," and "you drop off, you drive off in the road," and that she would "do the rest." That she then said she was going to knock him in the head, and further said, "After I roll him off into the river, you drive back." That she would let the witness know, and she would jump into the wagon, and they would whip up the horse, "and get out of the place, and get back." That nothing came of this. That in the afternoon of the day of the homicide the witness saw Marcus Rogers and the petitioner and one Estella Bates at the house in Bennington where the latter lived. That the witness remained there until half past 5 o'clock, and then went to his home, Marcus and the petitioner coming down behind him, and after the witness got home the petitioner came, it being then about half past 6 o'clock. That the witness went to bed that night at half past 8 and the petitioner about 9. That the witness laid down on the bed and went to sleep, and was awakened about half past 9 by the petitioner, who asked him, 'Are you ready to go?" to which the witness answered, "Yes." The petitioner said, "You wake up and get ready." The witness said, "All right," but did not get up immediately. About half past 10 the petitioner called him again to get up and put on his clothes, and upon the witness' saying, "All right," she went out of the room, and sat down, and went to writing. That the witness' bedroom and the petitioner's bedroom adjoined, and to go to the witness' room it was necessary to pass through the petitioner's room. That as the witness was getting ready to go out the petitioner called for his jackknife, and he let her take it. That she sat down on the bed, took a two-ounce bottle of chloroform out of her bosom, and with the jackknife cut the label off, saying to the witness that Estella Bates bought the chloroform at Hoosick Falls. That as the petitioner and the witness started to go out the petitioner directed the witness to take off his shoes, and at the same time she took off hers, and in that way they passed downstairs and out of doors. That after going out they put on ] their shoes, waited some minutes, and then i went through the fence following the path into Morgan's grove, the petitioner taking the lead and the witness following her. That they went down to the stone wall by the river bank. That after waiting about half an hour for Marcus Rogers, who did not come, the petitioner went to see if she could find him, and when she came back he was with her. That the petitioner said to Marcus, "Sit down on the wall," whereupon he sat down, and they went to talking about how he was getting along, what he was doing, where he was working, and how his health J was. That she said to Marcus, "Let's sit down on the ground beside the wall, it is warmer," and asked the witness for his overcoat. That she took the overcoat, laid it down lengthways of the wall, and all three sat down, Marcus being between the wit ness and the petitioner. That the petitioner then said to Marcus, "You get up, this does not sit right," whereupon he got up, and she took the overcoat, spread it on the ground, and Marcus sat down, laid his head in her lap, and they went to talking about the same things as before. That the petitioner then said to Marcus, "Estella Bates showed me some tricks to-day with a rope," and at the same time she asked the witness to take the rope which they had brought with them. That the petitioner took the rope, asked Marcus for his hands, and she tied them behind him. That the first time she tied them he got them apart. She tied them a second time. He took them apart again, whereupon she asked the witness to take the rope and try it, which he did with like result the first time, but as the witness was tying the rope the second time Marcus said to the petitioner, "What are you doing?" She said, "Nothing." That in the meantime the petitioner had taken out the chloroform bottle, and the witness kept on tying the rope. That she turned the chloroform on to some handkerchiefs, tipped Marcus over with his head in her lap, and put the handkerchiefs under his nose. That Marcus then turned over and said, "Stop it," but she kept on, calling to the witness for help. That the witness helped hold Marcus, who, in about two minutes, was dead. That by direction of the petitioner the witness cut the rope off Marcus' hands, and rolled him into the river. That as he was rolling him in the petitioner took from Marcus' pockets his insurance papers. That the rope thus used the witness took with him from his father's place by the petitioner's direction, the petitioner then telling the witness the use she wanted to make of it. That after the body was rolled into the river the petitioner carried the chloroform bottle back with her, and the rope she threw into the back yard of the witness' father's house. That the petitioner wound the handkerchiefs which had been used in chloroforming Marcus around the chloroform bottle, and wrapped them in paper, and directed the witness to throw them under the water-closet, which he did. That the petitioner pinned a note written by her upon Marcus' hat, and tied the hat to a bough of a tree some distance away from the place of the homicide and near the path in Morgan's Grove. That the witness and the petitioner got back to the house at half past 12 o'clock, and went to bed. That after the body was found the witness confessed the crime, showed Deputy Sheriff Nash where the chloroform bottle was, also the rope, and assisted him in getting the bottle with the handkerchiefs and paper tied around it from under the water-closet; also went with him and pointed out the route that he and the petitioner took on the evening of the homicide in going to the place where the crime was committed. That on the night of the homicide the petitioner told the witness that the man killed was her husband; that she wanted the insurance money to buy furniture to go to keeping house; that she was going to keeping house with Morris Knapp, who had also been boarding at the witness' father's house, and when there had occupied the same room and bed with the petitioner. That during the week of the homicide Morris Knapp was in attendance upon the muster of the state militia, of which he was a member, at Burlington. The witness was cross-examined at length by the petitioner's counsel, and in some respects made contradictory statements, and some questions he did not answer, but regarding the particulars of the homicide, and the part which he and the petitioner respectively took in the same, his testimony in chief was not materially changed or shaken. The witness testified in cross-examination that when he first confessed the crime he was scared; also that he had been informed by his brother Levi that the state's attorney and his assistant, Mr. Barber, had said that if the witness would go on the stand and testify to the truth he would be let off upon a charge of manslaughter, and he would not get more than three or four years' imprisonment; and that it was under such promise, representations, and hope that he had testified.

Attached to the petition for a new trial are the affidavits of William S. Lovell, E. W. Oakes, and Edward B. Flynn, who were together at the state's prison at Windsor on the 31st day of January last. These affiants testify that Leon Perham then told them that when he testified against the petitioner at her trial he lied, and had to do it in order to save his own neck, or, as one of them puts it, to save himself; and upon this statement, as shown by these three affidavits, the petitioner relies as one ground for a new trial. So far as these affidavits show, all Leon then said to the affiants was that he had lied when he testified at the trial. In what respect he lied he did not state. It may have been regarding some of the particular things concerning which he gave contradictory statements in his cross-examination as above stated. It appearing by the transcript of...