State v. Davis

• Decision Date: 04 December 1928
• Parties: STATE v. DAVIS.
• Court: New Hampshire Supreme Court

144 A. 124

STATE

v. DAVIS.

Supreme Court of New Hampshire. Rockingham.

Dec. 4, 1928.

Exceptions from Superior Court, Rockingham County; Matthews, Judge.

Earl Davis was convicted of breaking and entering a store in the nighttime and larceny of goods therefrom, and he brings exceptions. Exceptions overruled.

Indictment for breaking and entering a store in the nighttime and larceny of goods therefrom. Trial by jury and verdict of guilty. Transferred by Matthews, J., upon the defendant's exceptions to questions put to a witness by the court, to remarks by the state's counsel in argument, and to the denial of a request for instructions.

William H. Sleeper, of Exeter, for defendant.

Stewart Everett Rowe, of Exeter, for the State.

SNOW, J. A witness for the state, having stated on direct examination that the matter of the proposed break was talked over before the entry in the presence of the defendant, further testified:

"Q. Now, go on. A. Then we said we would bring out, whatever we would get we would divide in half with the four of us.

"Q. Was that agreed to by Earl Davis? A. Yes."

The witness then described the entry and removal of the goods by two members of the party while the defendant remained without, the subsequent meeting of the four, and the division of the spoils in which the defendant shared. In the course of the redirect examination the court inquired:

"Q. By the Court: * * * When you boys met that night before you went up to the store did yon all of you together plan just what you would do? A. Yes.

"The Court: Whether or not Earl Davis had anything to do with the plan that you afterwards followed out?

"The Witness: Well, I think we was all in it.

"The Court: Whether or not you talked it over together."

Objections being made to the last two questions, both as to form and substance, the court withdrew all his previous inquiries, and put the following questions to which exceptions were severally taken:

"The Court: * * * I will ask you * * * to tell me just what the conversation was at the time you boys met that night, and who took part in it.

"The Witness: I don't remember just exactly what was said, but there was two of us planned to go in the store, and then we was to divide up, and we was to meet in back of the police station.

"The Court: Are you now telling me just what was talked over in the presence of all of you?

"The Witness: Yes, we were all there.

"Q. By the Court: Now, why didn't Mr. Davis go in with you boys? A. I don't know just why he didn't."

It is the right and duty of the presiding justice to take part in the examination of witnesses whenever he deems it essential to elicit the truth or necessary to a clear understanding of the testimony. The right is subject only to the limitation that he must preserve a judicial attitude and refrain from disclosing his own views and opinions. State v. Hause, 82 N. H. 133, 137, 138, 130 A. 743. This common-law practice (Wig. Ev. §§ 784, 2484) has never been questioned in this jurisdiction. The occasion for such examination, and the extent to which it should be carried, are largely matters of discretion with the court. The witness having stated that the defendant had a part in the plan, it was desirable that the jury should be informed as to what that part was; in other words, just what was said and done. The record does not disclose that the presiding justice exceeded his right or abused his discretion.

The several exceptions sought to be taken during the course of the argument, being addressed to the argument itself and not to its allowance, raised no question of law. Tuttle v. Dodge, 80 N. H. 304, 312, 116 A. 627; O'Dowd v. Heller, 82 N. H. 387, 301, 134 A. 344. As the presiding justice by the transfer, and the parties by their arguments, have treated the exceptions as seasonably and properly taken (Dziedzic v. Newmarket Mfg. Co., 82 N. H. 472, 474, 136 A. 261; Gerry v. Neugebauer, 83 N. H. 23, 25, 136 A. 751), they have, however, been considered.

1. The two boys who had confessed to breaking and entering the store were called as witnesses by the state. The defendant's counsel, having expressed his aversion to placing reliance upon such testimony, the state's counsel in reply, commenting upon the common use of such evidence in criminal trials, stated that the defendant's counsel, by reason of his experience as county solicitor and his extended practice, knew of such usage, and that "no doubt, when he was solicitor * * * relied * * * many times [on] a person who had been in crime." Objection being made to the latter expression, the court offered to strike it out if the defendant's counsel denied the assertion. No denial being made, the trial proceeded without further insistence upon the objection.

Even if the silence of the defendant's counsel and failure to insist upon a ruling were not a waiver of his objection (Lee v. Dow, 73 N. H. 101, 105, 59 A. 374; Felch v. Weare, 66 N. H. 582, 583, 27 A. 226), the exception is still without merit. The public service of the defendant's counsel and his extended practice in the county must be presumed to have been matters of common knowledge to a jury drawn from that county. His knowledge of, and probable participation in, the submission of such evidence, was a fair inference therefrom. The words "no doubt" were used argumentatively in the sense of "it is probable." A fact which may be inferred from facts proved, or which is within the common knowledge of the jury, may be stated arguendo as established. Kambour v. Railroad, 77 N. H. 33, 52, 86 A. 624, 45 L. R. A. (N. S.) 1188; Maravas v. American Eq. Corp., 82 N. H. 533, 538, 136 A. 364; Beliveau Assur. v. Varick Co., 81 N. H. 57, 59, 120 A. 884. The argument appears to have been well within the bounds of legitimate advocacy. Hyland v. Hines, 80 N. H. 179, 184, 116 A. 347.

2. As an instance of the use of like evidence, the state's counsel, in argument, cited the celebrated trial of Lt. Charles Becker in New York for the murder of Herman Rosenthal, in which the state called as a witness Bald Jack Rose, who was implicated in the crime (see People v. Becker, 91 Misc. Rep. 329, 155 N. Y. S. 107; Id., 210 N. Y. 274, 104 N. E. 396; Id., 215 N. Y. 126, 109 N. E. 127, Ann. Cas. 1917A, 600; Id., 215 N. Y. 721, 109 N. E. 1086), at the same time characterizing his mention of the case as "a story." Apparently the citation was made on the theory that the Becker Case had become so far historical in criminal annals that a jury might be presumed to be familiar with the course of the trial. See 1 Thompson on Trials, § 984; Heyl v. State, 109 Ind. 589, 10 N. E. 916; Northington v. State, 82 Tenn. (14 Lea) 424, 431. The uncertainty as to the extent to which the details of such a trial may be generally...