State v. Cox

• Decision Date: 16 December 1941
• Citation: 23 A.2d 634
• Court: Maine Supreme Court
• Parties: STATE v. COX.

23 A.2d 634

STATE

v. COX.

Supreme Judicial Court of Maine.

Dec. 16, 1941.

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Appeal and Exceptions from Superior Court, Cumberland County.

Arthur F. Cox was convicted of murder, and the case is brought to the Supreme Judicial Court on appeal from the refusal of the presiding justice to grant motion for a new trial, and on exceptions.

Exceptions overruled, appeal dismissed, motion for new trial denied, judgment for the State, and case remanded for sentence.

Before STURGIS, C. J, and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Frank I. Cowan, Atty. Gen., and Albert Knudsen, Co. Atty., and Richard S. Chapman, Asst. Co. Atty, both of Portland, for plaintiff.

Hayden Covington, of Brooklyn, N. Y., Clarence Scott, of Old Town, and Charles W. Smith, of Biddeford, for defendant.

WORSTER, Justice.

On appeal and exceptions.

At the September Term, 1940, of the Superior Court held at Portland, in our County of Cumberland, the respondent, Arthur F. Cox, was indicted, tried and found guilty of the murder of E. Dean Pray, at Windham, Maine, on August 20, 1940. The case is brought here on appeal from the refusal of the presiding justice to grant the respondent's motion for a new trial, and on exceptions.

The appeal.

On the appeal, the question is whether, in view of all the testimony in the case, the jury were warranted in believing beyond a reasonable doubt, and therefore in finding, that the defendant committed the homicide with malice aforethought, express or implied. State v. Mulkerrin, 112 Me. 544, 92 A. 785.

The respondent admitted at the trial that he fired at Pray the shots which caused his death, but claimed that they were fired without malice aforethought, in self-defense, and in defense of his companion, Kenneth A. Carr.

The jury might have found, from the evidence, that Arthur F. Cox was forty-nine-years old, five feet and seven inches tall, and weighed about one hundred twenty-four pounds; that he had worked as a machinist and toolmaker in various parts of the United States; that he belonged to a sect called Jehovah's Witnesses, and that, from 1907 until he came to Portland in 1940, he devoted his spare time to doing what is called by the members of the sect "witness" work. This work is done, in part at least, by the witness going from door to door in a community, with a phonograph and records, and a bag containing booklets and perhaps other literature pertaining to the work of that sect. A record bearing what is called a message is played on the phonograph to those who will listen to it, and booklets and literature are distributed to those who will receive them. On arrival in Portland during the first part of August, 1940, he became connected with the local company of Jehovah's Witnesses at that place, and thereafterwards, up to the time Mr. Pray was shot on August 20, Cox devoted his whole time to the work carried on by that sect, of which he says he was an ordained minister, with credentials to that effect, issued to him by the Watch Tower Bible and Tract Society, by J. F. Rutherford, President.

Testimony tends to show that at about 8:30 or 9 o'clock in the morning of August 20, Cox left the headquarters of the local company of Jehovah's Witnesses, at 1 Myrtle Street in Portland, in company with Kenneth Carr and a woman named Verle Adams Garfein, for that part of Windham known as North Windham, to there do the work carried on by Jehovah's Witnesses. They traveled in Cox' car, which he drove. Each of them had a phonograph and at least one record, and a bag containing booklets and literature, and Cox had a map of the territory to be worked by them that day, which had been loaned to him by the person in charge at the headquarters at Portland. Cox also had in his bookbag a revolver (hereinafter sometimes referred to as a gun) which he had obtained during the previous month, and which because, he said, of an assault made on him in Portland, he had been carrying with him for about two weeks, for protective purposes.

Cox states that during the forenoon of August 20, while in a store in North Windham, he was told to get out of town in ten minutes. He then went back to a nearby information booth, where he had called earlier in the day, to see Mrs. Robbins, who was in charge of the booth, because, he said, "I had learned that there was a good deal of hostility there, and I wanted to know who could be depended upon to maintain the law and order there in case any disturbance arose for any reason." He did not find her until about two o'clock that afternoon, when she gave him the names of certain persons, including said Pray, who was then a deputy sheriff. Cox testified that at that time he had no knowledge that Pray had previously assaulted another Jehovah's Witness, or that one of them had been evicted by Pray by force, although Cox there learned from Mrs. Robbins that Pray had told them to get out of town. Cox did not go to see Pray, because he had heard that he was unfriendly, and since they were going down that way he knew that they would eventually call on him anyway.

According to Mrs. Robbins, Cox was nervous and perturbed when she saw him the second time. He was upset over something. He wasn't pleasant but he wasn't viciously angry; he wanted to see somebody in a hurry, somebody who had some authority. She further testified, when questioned, as follows:

"Q. Did he say anything when you told him not to go down there, not to stay in town, not to go down to Pray's? A. He said if he started anything he could take care of him, because he had been ordered out of other towns and he knew how to take care of himself."

Cox, evidently referring to the threat he had received while in the store, testified that he told her "that we were going to finish this town in spite of some threats that had been made us."

Evidence indicates that after this conversation with Mrs. Robbins, Cox came out and got into his automobile, where Miss Garfein and Carr were waiting for him, drove a short distance in the direction of Portland, turned around, came back, and parked a little northerly of the booth, on the same side of the road. They then got out, and Miss Garfein took the easterly side of the road, while Cox and Carr crossed the road to make calls on the westerly side. Cox called at the Varney house, and Carr called at the home of Pray, which was the dwelling next northerly. Neither found anyone at home, and, coming from those houses, they met and walked along together, going northerly on the path which served as a sidewalk until they arrived at some point in front of Pray's garage, where Carr turned off to enter the garage. According to one witness, they parted halfway between the pumps and the sign post. And it elsewhere appears that the easterly post, supporting the sign "Pray's Garage", is thirty feet and seven inches northerly of the center of the so-called "island" on which the pumps stood. Cox testified that he proceeded by the sign post a few steps and waited to see if Carr would get a reception.

According to the plan drawn to scale, which was used at the trial, the center of the pump island is about thirteen feet and nine inches westerly of an extension of the westerly line of the westerly graveled shoulder of the road. The southerly line of the garage projected to the road would pass a little to the north of that island, the center of which is twenty-nine feet and five inches easterly of an extension of the easterly line of the garage.

This garage is irregular in shape, and is located on the same side of the road as the Pray house, and next northerly thereof. Its southerly line is about fifty feet long, and the end next to the street is about twenty feet wide.

It appears from the record that Carr entered the garage and proceeded toward the Varney automobile, which was standing in the southwesterly corner thereof, where it was being repaired. Pray was working underneath it and Varney was leaning in, assisting him. At the same time, Clyde M. Elder, an employee of Pray, was working underneath the Ward car, which was also standing in the rear of the garage, but northerly of the Varney car. Ward was standing near Elder. As Carr approached the Varney automobile, he had the phonograph on his arm, and said to Pray: "How do you do? I have a message here. Would you like to hear it?" Pray replied: "Go on. Get to hell out of here."

The respondent and his witness Carr do not agree with the witnesses for the State as to what then happened, especially as to when or where Pray got the tire iron, or as to the position, attitude and conduct of the parties at the time of the shooting and immediately before.

According to Carr's testimony, he turned to walk out when told to go. As he turned, Pray picked up a tire iron and when Carr had walked about fifteen feet, came up and put his hands on Carr's back, shoved him, and he went out. Pray pushed him four or five steps, gave him a shove and hit him with something. As Carr was going forward, he straightened up and swung around to defend himself. Pray was then about five feet behind him, with the tire iron raised, and said "he was going to knock our damned heads off." Just then Carr heard three or four shots and Pray started for the corner of the house, stumbling. When Carr straightened up he saw Cox standing a little to his left and probably five or six feet from him. Pray was about six feet tall, and probably weighed one hundred eighty or one hundred ninety pounds, was swearing, raging mad, and close enough to strike Carr, but not to his knowledge within striking distance of Cox at any time that day.

According to testimony of Cox, he was standing between the road and a line drawn from the pumps through the easterly sign post, waiting to see if Carr would get a "reception". He saw Carr enter the garage and go to the rear of the building, and heard him say something. A man...