State v. Crough

• Decision Date: 01 July 1959
• Docket Number: No. 9922,9922
• Citation: 89 R.I. 338,152 A.2d 644
• Parties: STATE v. William Henry CROUGH. Ex.
• Court: Rhode Island Supreme Court

Page 644

152 A.2d 644

89 R.I. 338

STATE v. William Henry CROUGH.

Ex. No. 9922.

Supreme Court of Rhode Island.

July 1, 1959.

J. Joseph Nugent, Jr., Atty. Gen., Raymond J. Pettine, Asst. Atty. Gen., for the State.

Aram A. Arabian, Public Defender, Providence, for defendant.

PAOLINO, Justice.

This is a statutory short form indictment in two counts charging that the defendant (1) 'on, to wit, the eighteenth day of November in the year of our Lord one thousand nine hundred fifty-five * * * did murder one Deborah Conlon'; and (2) 'between the twelfth day of November * * * and, to wit, the twenty-first day of November * * * did murder one Deborah Conlon.' The indictment was returned in April 1957 and thereafter the defendant was convicted by a jury in the superior court of manslaughter. His motion for a new trial was denied. The case is before us on his exceptions to such denial and to certain rulings by the trial justice relating to the admission and exclusion of evidence, to his refusal to charge as requested, to certain portions of the charge, and to the denial of the defendant's motions for a directed verdict in his favor as to murder in the first degree and as to murder in the second degree.

The defendant has briefed his exceptions under four main points, and we shall treat such exceptions in the same manner but not necessarily in the same order.

The evidence discloses that at the time of the trial in November 1957 defendant was thirty-one years of age. After serving in the United States Navy for two and one-half years, he received an honorable discharge in 1945. Sometime thereafter he served a prison term in Massachusetts for robbery and was freed on parole in 1952. He came to Rhode Island from Massachusetts in 1955 and lived for a while with a married sister. Later on he met Mrs. Beatrice Conlon, the mother of Deborah Conlon. After leaving his sister's house he went to live with Mrs. Conlon and her three children, Deborah, aged four years, and two boys aged six and twelve years.

The defendant testified that he and Mrs. Conlon lived together as man and wife; that he acted as head of the household; and that they intended to get married on January 21, 1956. Mrs. Conlon testified that they began living together as man and wife in July 1955. It is undisputed that he lived with Mrs. Conlon and her three children up to November 18, 1955. However, after a preliminary hearing on the question of whether a common-law marriage existed between the parties, at which Mrs. Conlon was represented by her own counsel, the trial justice found that she had failed to establish a common-law marriage. The defendant has briefed his exception to such finding under point II. In our opinion there is evidence in support thereof and therefore the trial justice was not clearly wrong in so finding. We shall treat the case accordingly.

The house in which they lived was located on Mishnock road in the town of West Greenwich. It appears from the evidence that when the two boys returned from school on November 17, 1955, about 4 p. m., they asked defendant about Deborah and he told them she was in bed because she was not feeling well. He also told this to Mrs. Conlon when she returned home from work about 5 p. m., although he later stated that he then knew the child had been dead since approximately 3:30 p. m.

On the following morning the two boys went to school and Mrs. Conlon went to work without having seen Deborah. When she returned home that evening she found a note in defendant's handwriting in the kitchen. This note is in evidence as state's exhibit 1 and stated in substance that defendant and the child had gone to Boston and that they would be back on the following day.

On November 19, 1955 Mrs. Conlon went to the Hope Valley state police barracks and showed the patrol commander the note. After reading it he and another trooper went to her house and searched the premises. The child's body was found in a shed in the back yard wrapped in a bedspread with a piece of paper on top of it. Thereafter, upon the arrival of the medical examiner, pictures were taken and the contents of the piece of paper, which is now state's exhibit 4, were read. The child's body was then removed to the state morgue where the medical examiner performed an autopsy. Exhibit 4 reads as follows:

'Bea

'I dont know how to tell you. I'm so very sorry.

'Yesterday I took debby out back on the swing and she fell on the wooden horse on her stomach it got awful black & blue.

'She seemed ok for a while then nothing. I tried so hard to help by giving artificial respiration & breathing in her mouth.

'Honey she's dead

'They'll blame me I know with my record. I have to leave. You'll hate me now, and I was so happy with you & the kids.

'I Love You Bea

Bill'

On August 20, 1957 defendant was arrested by the F.B.I. in Chicago, Illinois. He told them that the child's death was accidental and he wrote and signed a statement, a copy of which is in evidence as state's exhibit 15, in which he described the events of November 17, 1955 substantially as he had done in exhibit 4. He described the accident as having happened at about 1:30 p. m. and stated that she stopped breathing about 3:30 p. m. He also described what he did to help the child and the events which culminated in placing her body in the shed, in his writing the two notes, and in his leaving the state.

The defendant waived extradition and was taken back to Rhode Island by Captain Cassidy and Trooper Willard F. Partington of the Rhode Island state police. They took him in custody at about 3 p. m. on August 29, 1957 and entrained for Providence at about 4 p. m. Trooper Partington testified that when they were on the train about a half hour out of Chicago the defendant stated that the child's death happened as he had described it in exhibit 15, but that later the trooper told defendant he could not believe that story and wanted to know what actually took place on November 17, 1955. The trooper testified that at that point defendant said: 'Look, you fellows have used me all right. * * * I've been living with this thing for almost two years now. * * * I want to get it off my chest.' Then defendant made a statement to them which was materially different from what he had written in exhibits 4 and 15. This statement was subsequently reduced to writing when they arrived at the state police headquarters in Lincoln, Rhode Island, at about 2:10 p. m. on August 30, 1957.

At the Lincoln barracks defendant personally wrote and signed a statement which is in evidence as state's exhibit 13. He also signed another statement, which is in evidence as state's exhibit 14, and which was typed by the state police. In exhibit 13 defendant put in writing the second story which he had given the state troopers on the train. Exhibit 14 consists of questions by the state police relative to statements appearing in exhibit 13 and defendant's answers to such questions. This exhibit is substantially an elaboration of defendant's statements made in exhibit 13. These statements were both signed in the afternoon of August 30, 1957, about 3 p. m. On the following day he was brought to court for arraignment.

The state's offer of exhibits 13 and 14 as evidence was objected to by defendant on the ground that the state had not established that they had been freely and voluntarily made, but defendant did not request a preliminary hearing on this issue. He merely reserved the right to move to strike such exhibits after the conclusion of the cross-examination of Trooper Partington, the witness through whom the state sought to introduce such exhibits. Before admitting them in evidence the trial justice permitted extensive examination of the witness, in the presence of the jury, concerning the circumstances surrounding the making and execution of the statements.

Trooper Partington testified that he was with defendant continuously from the time he was taken in custody in Chicago until he signed exhibits 13 and 14; that no promises, threats, force, or pressure of any kind were used to obtain the statements; that defendant was not misled in any way; that he witnessed the making and execution of exhibits 13 and 14; and that defendant freely and willingly made the oral statement on the train and the written statements in exhibits 13 and 14. On the basis of such testimony the trial justice admitted the exhibits in evidence.

Under point I (A) defendant contends that the trial justice erred in so doing. There is no merit in this contention. The only evidence before him was the uncontradicted testimony of trooper Partington that defendant's statements had been freely and voluntarily made. In our opinion on the basis of the record the trial justice was warranted in permitting said exhibits to be introduced in evidence.

After the introduction of the exhibits, defendant's counsel was given wide latitude in cross-examining the witness concerning all circumstances connected with the making of the oral statement on the train and the making and execution of exhibits 13 and 14. After completing his examination of the witness, and without presenting any other evidence in rebuttal on this issue, defendant's counsel moved to strike exhibits 13 and 14. The trial justice denied this motion. The defendant's exception to such ruling is equally without merit. It is clear from the testimony at this point that the only evidence before the trial justice was the uncontradicted testimony of the state's witness that defendant had volunteered the statement on the train and that no promises, threats, unlawful influence or pressure had been exerted to induce the making of that statement or the statements contained in exhibits 13 and 14.

In exhibits 13 and 14 defendant described the events of November 17, 1955 in substance as follows. He stated that after Mrs. Conlon's two boys had departed for school he brought Deborah to bed with him as was a frequent practice; that she was a...