State v. Ernst
| Decision Date | 08 April 1955 |
| Citation | 150 Me. 449,114 A.2d 369 |
| Court | Maine Supreme Court |
| Parties | STATE of Maine v. John ERNST. |
Joseph B. Campbell, Augusta, for plaintiff.
Dubord & Dubord, Waterville, for defendant.
Before WILLIAMSON, TIRRELL, WEBBER, TAPLEY and THAXTER, JJ.
On exceptions and appeal, the respondent was tried for the crime of murder, before a jury, at the October Term, 1953, of the Superior Court, within and for the County of Kennebec and State of Maine. The jury returned a verdict of manslaughter. The respondent was sentenced to a term of not less than two years and not more than four years in the Maine State Prison.
John Ernst, the respondent, is a chicken farmer living in Sidney, Maine and operating two chicken farms located on the West side of the Middle Road in Sidney and identified as the Upper Farm and the Lower Farm. He lives on the Lower Farm. These farms are approximately a mile apart. His principal business is the production and sale of eggs. He employs an average of fourteen persons, among whom was one Alfred Snow, the victim.
About 10:45 P. M. of the evening of August 14, 1953, the respondent, then at his home, was called upon by his foreman, Gerald H. Campbell, who notified him that he had just seen an automobile, which he identified as belonging to Snow, parked on the Middle Road approximately 350 feet North of the driveway leading to the Upper Farm. He told Ernst he thought that someone 'might be making off with chickens.' The respondent armed himself with his shotgun and proceeded to where the Snow car was parked on the Middle Road. Campbell followed in his automobile. The respondent parked his car directly in front of the Snow car and Campbell parked his car to the rear of the Snow car and then they proceeded to search for Snow by investigating the brooder houses and egg house located on the Upper Farm. They then walked to the Middle Road where the cars were parked, after finding no evidence of larceny, whereupon their attention was attracted by two men hurrying along the highway carrying a case of eggs between them. Upon being discovered they dropped the eggs and ran into the woods. One of the men was Alfred Snow, the victim, and the other named Roger Owens, his companion. Ernst ordered Campbell to go to the farmhouse, notify the State Police and upon his return to bring with him Ernst's shotgun which he had left propped against an automobile standing in the yard of the farmhouse. When Campbell came back from the farmhouse with Ernst's gun, Ernst took possession of the gun and fired it twice into the woods in the general direction taken by Snow and Owens, whereupon Owens emerged from the woods and approached Ernst who was then standing in a clearing near the road and when he reached a point in close proximity to Ernst, the respondent struck him in the stomach with the muzzle of the gun. Soon after the appearance of Owen, Snow came from the woods and, as he left the wooded area, Ernst went into a clearing after Snow and escorted him to a position near the parked cars on the road, Ernst being behind Snow directing the gun at him as they were walking. When they reached a point on the road near the car of Ernst, the gun was fired, resulting in the death of Snow.
During the trial of the case, respondent took exceptions to the exclusion of testimony; to the admission of testimony; to the admission of exhibits in the form of photographs; to the refusal of the presiding Justice to give requested instructions to the jury; and to certain portions of the charge of the presiding Justice. The respondent also appealed from the denial of a motion for a new trial. The respondent's bill of exceptions contains a total of thirty-two exceptions and of this number the following disignated exceptions are expressly waived: numbers 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 21, 24, 25, 26 and 28.
In the interests of clarity the exceptions will be considered in numerical sequence.
Exception 3.
Exception 3 concerns a question asked of Frederick Kneeland, a State Police Officer, on cross-examination by defendant's counsel and relating to Roger Owens. The question reads as follows:
The question was excluded.
This question had nothing whatever to do with the issues in the case or the status of Roger Owens as a witness for the State, and by its exclusion the respondent could not have been aggrieved.
Exception 3 overruled.
Exception 4.
Frederick Kneeland testified that Roger Owens was charged with the larceny of a case of eggs; that upon his plea of guilty he was sentenced to sixty days in the County Jail; that sentence was suspended and he was placed upon probation for one year conditioned that he go to Togus for a checkup. On cross-examination, Officer Kneeland was asked this question, referring to Owens and the condition of probation:
The record discloses that Officer Kneeland knew nothing about the reasons why Owens was placed on probation conditioned that he go to Togus and it is apparent that any answer to the question could not have been within the knowledge of the officer. His testimony in respect to the disposition of Owens' case was personal knowledge of disposition only and nothing more.
Respondent takes nothing by this exception.
Exceptions 14, 16, 17, 18, 19 and 20.
These exceptions relate to the admissions of photographs displaying the body of the victim, showing a gunshot wound and other wounds about the left side, the forehead and right arm of the deceased. The pictures also depicted the condition of the body during various stages of the autopsy. The record shows testimony relating to various wounds and abrasions on the body that were depictured in the photographs and concerning each photographic exhibit there was testimony referring to these wounds and abrasions alleged to have been caused by the actions of the respondent. The photographs were extremely gruesome primarily because of the fact that they were taken during autopsy procedure. It is significant to note that the gunshot wound and other wounds, contusions and abrasions were plainly visible and not interfered with by autopsy incisions. The law is well settled that the mere fact that a photograph is gruesome is not a reason for its non admission. State v. Stuart, 132 Me. 107, 167 A. 550.
The presiding Justice has great latitude and discretion in determining the admissibility of photographs and unless there is shown an abuse of discretion, his ruling will not be disturbed on exceptions.
State v. Jordan, 126 Me. 115, at page 116, 136 A. 483: * * *' State v. Turmel, 148 Me. 1, at page 7, 88 A.2d 367; State v. Rainey, 149 Me. 92, at page 94, 99 A.2d 78; See 159 A.L.R., page 1413, et seq. See Wigmore on Evidence, Vol. IV, Sec. 1157.
There was no abuse of discretion in admitting the photographs.
Exceptions 14, 16, 17, 18, 19 and 20 overruled.
Exception 22.
Arthur Freeman was a captain in the Maine State Police and performed the particular functions of Supervisor of the State Police Bureau of Identification. There was no objection to his qualifications. During the course of his testimony he was questioned about a certain test or experiment he made on the gun that was used in the shooting. The purpose of this test was to determine whether or not there was any mechanical failure in the operation of the gun. Counsel for the respondent objected in the following language:
'Without describing any test I object to any evidence about the test in the absence of showing there is any similarity in the conditions under which tests were made and any evidence in the case relating to the account, itself.'
The testimony of the witness Freeman was that the gun was dropped from a distance of about thirty inches onto the floor by the butt and then thrown on its side several times at a distance of thirty inches to ascertain if it would explode, and that the trigger pull was tested to ascertain the required pull in poundage to release the hammer. There was also some evidence of test firing the gun. In view of the position taken by the respondent, that the deceased grabbed the gun and started to pull it out of the respondent's hand and that the respondent had nothing to do with causing the gun to be fired, it becomes relevant under these circumstances for the State to determine, by test and experiment, exactly what the condition of the gun was insofar as its firing capacity was concerned. 26 Am.Jur., pages 466-467. Mansfield v. Commonwealth, 163 Ky. 488, 174 S.W. 16.
This exception is overruled.
Exception 23.
Norman Hamilton, a sergeant of the Maine State Police, witnessing for the State, was asked on cross-examination the following question:
Counsel for the State objected to the question and counsel for the respondent, in the absence of the jury, made the following offer of proof:
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