State v. Doherty

• Decision Date: 29 August 1900
• Citation: 48 A. 658,72 Vt. 381
• Court: Vermont Supreme Court
• Parties: STATE v. DOHERTY.

48 A. 658

72 Vt. 381

STATE

v. DOHERTY.

Supreme Court of Vermont. Washington.

August 29, 1900.

Exceptions from Washington county.

Charles Doherty was convicted of murder in the first degree, and the case was passed to the supreme court before judgment and sentence, on exceptions to the verdict and petition for a new trial. Exceptions overruled and petition denied.

The evidence introduced on the part of the state tended to show that one Frederick Murphy and the respondent at the time of the shooting referred to, and for some time previous, were workmen on the Bolton Falls dam, and were boarders at the house of one J. E. Pixley, in Waterbury, in the county of Washington; that ill blood had arisen between Murphy and the respondent; that the respondent had made threats concerning Murphy; and that a few days previous to the shooting in question there were trouble and sharp words over a newspaper, in connection with Murphy's going to the room of the respondent after it The evidence of the state further tended to show that on the night previous to the shooting the respondent went to Waterbury and purchased a 32-caliber revolver and a box of cartridges, and that on the night of the shooting the respondent and Murphy came up towards the house of the said Pixley, nearly together, and that as they reached the house the respondent said to Murphy, in effect, "We may as well settle this difference now as any other time," and that in reply Murphy said, "All right;" that thereupon the respondent said, "Come into the barn," and started towards the barn; and that Murphy took off his coat and sweater and started towards the barn. Testimony introduced on the part of the respondent tended to show that Murphy first suggested settling the difference by saying just before they reached the house, as before mentioned, "We might as well settle this difference," and that the remark of the respondent above stated was in response to this. While there was some dispute as to who first suggested a settlement, it appeared from the evidence that the respondent and Murphy then and there, in effect, agreed to settle the difficulty between them in mutual combat. The state having been permitted to show, upon the question of premeditation, that the respondent purchased a revolver on the night before he shot Murphy, and the claim of the defense being that the revolver was got simply as a proper precaution, under all the circumstances surrounding the respondent, and with no purpose to use it on Murphy or any one else, except in proper protection of life and limb, and the respondent having testified to that effect, and that he had a revolver about five months before, but that, it being worthless, he had thrown it away, the defense offered to show by one Burnham that the respondent had had a revolver as he had testified. The testimony offered was excluded on the ground of remoteness. This evidence was offered in corroboration of the respondent's testimony that he had had a revolver about five months before, and also to show that it was nothing new for him to have one, under the claim that it bore on the question of premeditation. It appeared that this revolver was an old and rusty one, and that the respondent threw it away the fall before the shooting in question. No claim was made that the respondent had any revolver at a later time, until he bought the one with which he killed Murphy. The respondent was permitted to give evidence tending to show that on the morning of the day preceding the shooting, and before the purchase of the revolver, he had been told that Murphy and a certain colored man had made a plot to "fix" the respondent. There was, however, no evidence of such plot. The defense claimed that the purchase of the revolver was a precautionary measure on the respondent's part to protect himself against assault by Murphy and the colored man, or by any one else, and offered to show threats of the colored man to "lick" the respondent. The offer did not indicate when the claimed threats were made, and the evidence thus offered was excluded.

It appeared that when Murphy and the respondent agreed to settle the difficulties between them in mutual combat, as above recited, they were at or near the veranda of the house of the said Pixley, and that there was a barn some 30 feet away; and the evidence on the part of the state tended to show that, when the respondent went toward the barn, as stated, he went with a quick walk, and went into the door of the barn; that Murphy, after he had taken off his coat and sweater, walked quite slowly towards the barn; that the respondent, as he went into the barn, stepped back of a door that was closed, turned and faced out to see if Murphy was coming, and put his hand into his hip pocket and drew a revolver up in sight from his hip pocket; that the boarding-house keeper, Pixley, seeing this, spoke to Murphy and said, "Fred, what is the trouble here?" that Murphy answered, "Oh, not much," and that Pixley then said to Murphy, "Stop, don't go in there; you will get hurt;" that thereupon Murphy stopped and turned his head to the right, and that as he did so the respondent came out of the barn quite smartly, went up to Murphy, and raised from his hip pocket a revolver; that Murphy then swung to the right and ducked his head very low, and that as he did so the respondent lowered the hand which held the revolver and fired; that when the shot was fired the two men were near enough together to reach each other with their hands; that when the respondent fired he said to Murphy, "I have got you now," or something to that effect; that Murphy was not armed with any dangerous weapon, and did not know that the respondent was; that when the shooting took place Murphy was nearer to the house veranda than he was to the barn, which was about 30 feet from the veranda. The respondent's evidence tended to show that he had not been well for a time, though able to work; that he was not as large, healthy, or strong as Murphy; that he went to the barn for safety, because he was scared when he saw Murphy commence to take off his garments; that he was in the barn a few seconds, and that then, seeing Murphy coming towards the barn, he came out of the barn, and was then so scared and nervous that he shot Murphy. The evidence of the state tended to show that the respondent was not scared or nervous, and that some days before the shooting the respondent said that "he thought he could lick Murphy yet," that "Murphy was no good," and that "he had no sand in him." It appeared that Murphy was shot on the 18th day of February, 1899, and that he died in a hospital at Burlington, April 1, 1899. The evidence of the state tended to show that he died in consequence of the shot fired by the respondent Dr. John B. Wheeler, who was a physician in charge of Murphy at the hospital in Burlington, testified in behalf of the state as to the facts within his own knowledge, and also as a medical expert. After stating his observation of Murphy and his medical treatment of him, and the results of his autopsy upon the body of Murphy after his death, he gave the following testimony: "Q. Well, doctor, assume that this person, on whom you performed the autopsy on the 1st day of April, on the 18th day of February was shot in the left side, at the point where the external wound appeared, with a bullet (32-caliber bullet), and that the wound which you have described was made by that; taking that into consideration, taking into consideration your observation during your care of the dead man, taking into consideration the results of your observation at the autopsy that you have testified to,—what, in your opinion, was the cause of the death of Fred Murphy? A. I think the cause of his death, or my opinion is that the cause of his death, was septic poisoning, the result of the bullet wound. Q. Was this a natural result of the wound? A. Yes. Q. Assume, doctor, if you please, that this person received on the 18th of February a bullet wound, caused by a 32-caliber bullet, and that the wound you discovered was the result of that shot inflicted at that time; take into consideration the observation which you had of him during your care of him, as you have testified to-day; take into consideration what you observed at the autopsy, as you have testified to-day,—what do you say as to whether there was any other cause which contributed to the death of Fred Murphy, except such as would naturally follow from the bullet wound so inflicted on the 18th of February? A. I say there was no other cause." This testimony was seasonably objected to.

The charge of the court related to murder in the first degree, to murder in the second degree, to manslaughter, and to justifiable homicide. Exceptions were taken to the charge, which, together with the portions of the charge excepted to, sufficiently appear from the opinion. A petition for a new trial on the ground of newly-discovered evidence was heard in connection with the hearing on the exceptions.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and THOMPSON, J.T.

Richard A. Hoar, State's Atty., for the State.

Frank Plumley and Edward H. Deavitt, for respondent.

TAFT, C. J. 1. Testimony was introduced upon the part of the state tending to show that the respondent, the night before the homicide, went to Waterbury and purchased a revolver and cartridges, as tending to show the homicide was premeditated. This was legitimate testimony, for any fact "which constitutes a preparation for an act" is relevant (Steph. Dig. Ev. [2d Am. Ed.] 19), and tends to show premeditation. The respondent testified he bought the revolver and cartridges to defend himself, in proper protection of life and limb; that when he went on the job in the fall of 1898, five months before, he had a worthless revolver, which he threw away some time thereafter. The respondent offered to show by one Burnham that he (the respondent) had a revolver when he went on...