State v. Demos

• Decision Date: 03 June 1924
• Docket Number: No. 1941.,1941.
• Citation: 125 A. 426
• Parties: STATE v. DEMOS (two cases). SAME v. SAITAS.
• Court: New Hampshire Supreme Court

125 A. 426

STATE

v. DEMOS (two cases).

SAME

v. SAITAS.

No. 1941.

Supreme Court of New Hampshire. Hillsborough.

June 3, 1924.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Nicholas Demos, Stefanos Demos, and John Saitas were found guilty of arson. Case transferred on their exceptions. Nicholas Demos discharged, John Saitas given new trial, and exceptions overruled as to Stefanos Demos.

Irving A. Hinkley, Atty. Gen., for the State.

Nicholas J. Costakis, Timothy P. O'Connor, Doyle & Doyle, and Paul J. Doyle, all of Manchester, for defendants.

PEASLEE, J. The indictments against the defendants charged them severally with the commission of a single crime. The court, in granting the state's motion that the three indictments be tried together, stated that the ruling was tentative, and that if, during the trial, it should appear that the rights of any of the defendants might be prejudiced by a joint trial, separated ones would be ordered. No such order was made, and no further request on this matter was preferred by any of the defendants. It is therefore to be taken to be a fact that none of their rights were impaired by the course pursued; and the sole question of law presented by the exception is whether the court has power to order such a trial in any possible situation.

The defendants could have been indicted either jointly or separately. State v. Nowell, 60 N. H. 199. If jointly indicted they could as a matter of course have been jointly tried. In such a situation the trial would have proceeded precisely as it did in the present instance. Nothing that was done here infringed any substantial right of either of the defendants. No case has been cited to sustain the claims of the defense. On the other hand, those cited by the state fully sustain the course taken, and are based upon sound reasoning.

"The power of the court to regulate the conduct of causes before it with a view to the proper dispatch of business and the interest of parties and others is undoubted, and is not, we think, abridged, because in a case like the present the grand jury for some reason has seen fit to indict the defendants separately, unless its exercise will interfere with substantive rights belonging to one or both of the defendants. * * * The reasons which led the court to order the two eases to be tried together are not before us. It is to be presumed that they were sufficient, and that the discretion of the court was properly exercised. We cannot say that the order was not, as matter of law, within its power." Commonwealth v. Seeley, 167 Mass. 163, 164, 166, 45 N. E. 91.

The doctrine of this case has recent approval in the same jurisdiction. Commonwealth v. Rosenthal, 211 Mass. 50, 97 N. E-609. It has been adopted elsewhere. Commonwealth v. Hartman, 31 Pa. Super. Ct. 364. The exception to the order for a single trial is overruled.

At the close of the state's evidence, the defendants severally moved to be discharged upon the ground that there was no evidence to justify a conviction of any of them as a principal. The evidence, consisting largely of confessions of the defendants, tended to prove that they were interested in a shop or store in Manchester, which was not doing a good business and which they had attempted to sell without success. The stock was heavily insured, and they decided to have a fire. Arrangements were made that Stefanos should negotiate with one Deskalopoulos for the services of one Terzis to set the fire on a Sunday at about noon. Terzis came from Nashua and looked the premises over, and selected the basement as the scene of operations. On Saturday night Stefanos delivered a basement key to Deskalopoulos for delivery to Terzis and on Sunday at about 11 o'clock Stefanos, in company with Saitas, locked up the store, and they went to their home. The fire was started as planned. After it was extinguished it appeared that the basement had been wet with kerosene or gasoline, and a box containing a partly burned fuse was found.

The motion for a discharge was denied, upon the ground that there was evidence that the defendants were conspirators, and that therefore each was liable as principal for any subsequent act of either of the others, done in the execution of the plot agreed upon. The case was subsequently sent to the jury under instructions to the same effect, and the exceptions raise the question of the soundness of the ruling.

"It is undoubtedly true that where several combine together for the same illegal purpose, each is the agent of all the rest, and any act done by one, in furtherance of the unlawful design, is considered in law the act of all. The evidence is very clear that the prisoner and Jennette were principals, equally with Ann, in the conspiracy to obtain the money; and if the indictment had been for the conspiracy, and not for larceny and receiving stolen money, evidence that Ann took the money would be competent to the conviction of Larkin, though Larkin was not present, aiding and abetting in such manner as to make him a principal in the theft. * * * But to constitute one a principal in the actual theft, he must be present * * * aiding and abetting at the fact, or ready to afford assistance, if necessary." State v. Larkin, 49 N. H. 39, 43.

It is manifest that the distinction drawn in the case just cited must...