State v. Greene., Ex. No. 8923.

• Decision Date: 09 August 1948
• Docket Number: Ex. No. 8923.
• Citation: 60 A.2d 711
• Parties: STATE v. GREENE.
• Court: Rhode Island Supreme Court

60 A.2d 711

STATE

v.GREENE.

Ex. No. 8923.

Supreme Court of Rhode Island.

Aug. 9, 1948.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Superior Court, Providence and Bristol Counties; Philip C. Joslin, Judge.

Julia F. Greene was convicted of murder in the second degree, and she brings exceptions.

Exceptions overruled, and case remitted for further proceedings.

John H. Nolan, Atty. Gen., and Archie Smith, Asst. Atty. Gen., for the State.

William R. Goldberg, of Pawtucket, for defendant.

O'CONNELL, Justice.

The defendant was indicted for murder and after a protracted trial was found guilty by a jury of murder in the second degree. A motion for a new trial was denied, and the case is before us on her exception to such denial and on other exceptions taken during the course of the trial.

The state's evidence showed that at about ten o'clock on the morning of November 2, 1946 the defendant accosted Mrs. Virginia Boston on School street in the city of Pawtucket, and after talking to her a few minutes drew a revolver from her shopping bag, aimed it at Mrs. Boston and fired three times. Two of the bullets entered her body and caused her death. The evidence also showed that Mrs. Boston had been keeping company with the defendant's husband, from which fact the state contended that this intimacy had embittered and enraged the defendant, culminating in the deliberate and premeditated killing of Mrs. Boston. Inspector Vincent A. Hourigan of the Pawtucket police testified that after the shooting, the defendant came to the police station and in a loud voice said: ‘Lock me up, she broke up my home. I shot her.’ While the defendant compelled the state to prove the actual killing of Mrs. Boston, there was no contention that she did not fire the shots that resulted in her death. The testimony of the state proved conclusively that the death of Mrs. Boston was caused by bullets fired from the revolver held by the defendant.

As bearing upon the question of premeditation, the state presented as a witness William W. Noonan, a licensed gun dealer, who testified that on October 5, 1946 the defendant called at his home for the purpose of purchasing a gun. She gave him a false name and address, and told him she wanted to purchase a revolver to give to her husband as a Christmas gift. She selected the revolver later used by her in the shooting of Mrs. Boston, for which she agreed to pay $45. She made a deposit of $5 and returned later with the balance. At that time there was a serial number on the butt of the revolver, which had been filed off at the time of the shooting. It further appeared in evidence that when she received that revolver from Noonan she left with him for sale a long-barrelled black revolver, which she had previously acquired and which was defective in that it could be fired but once without reloading.

The defendant gave a clear and coherent picture of her early life and constant quarrels with her husband over his association with Mrs. Boston, but expressed an almost utter lack of memory as to the actual killing. She did claim, however, in her statement to Inspector Hourigan shortly after the shooting that when she tried to speak with Mrs. Boston the latter refused to talk with her and called her a ‘parasite’; that when she heard the word ‘parasite’ everything ‘seemed to go black.’ Her defense was insanity and she presented medical testimony to support this claim.

The defendant has briefed and argued numerous exceptions, but it is unnecessary to discuss them all at length. The more important exceptions, however, we shall discuss in detail.

Exceptions 3, 5, and 55 involve questions asked of prospective jurors, on their preliminary examination, by the assistant attorney general. They are as follows: 1. ‘Would you allow any sympathy that might be aroused in you in the course of this trial from the family situation or home life of this defendant to interfere with your verdict or your following of his Honor's instructions?’ 2. ‘Do you have any feeling that a woman is justified in killing another woman who has stolen her husband's love?’

The defendant's objection that the first question contained no reference to sympathy for the deceased Mrs. Boston is without merit, since the defendant could have interrogated prospective jurors concerning this matter. These questions were calculated to determine whether such prospective jurors would decide the issues raised solely upon the evidence and the instructions of the court.

In the examination of a juror on his voir dire much must be left to the discretion of the trial justice and where no abuse of discretion is shown conviction will not be reversed. State v. Jacques, 30 R.I. 578, 76 A. 652; State v. Hathaway, 52 R.I. 492, 161 A. 366. No abuse of discretion appears here, and exceptions 3, 5 and 55 are overruled.

Exception 4 is to the court's refusal to excuse Frederick E. Case, Jr. as a juror, on the ground that he had a fixed opinion that every killing was either unlawful, unjustifiable or inexcusable and that the defendant was thereby deprived of the benefit of one of her peremptory challenges. The questions propounded to and the answers given by this juror do not sustain the defendant's contention. The record shows that the defendant's counsel asked questions of this juror and received answers as follows: ‘Mr. Goldberg: If his Honor gives you certain instructions as to the law with reference to killing of a human being, would you follow out those instructions? Witness: Surely. Q. And if his Honor instructs you that under certain circumstances a person would be guilty of a crime of murder and under other conditions the person might not be guilty of the crime of murder, you would follow out his instructions with reference to that and apply the particular facts that you hear on the case and those instructions? A. That is true.’

These questions and answers show clearly that this juror expressed a willingness to be governed wholly by the law and the evidence. The matter of excusing jurors for cause is largely in the discretion of the trial court and the exercise of such discretion will not be reviewed unless some abuse thereof clearly appears warranting the interference of the appellate court. State v. Entwistle, 38 R.I. 417, 96 A. 306. No such abuse appears in the instant case and exception 4 is overruled.

Exceptions 6 to 13 inclusive relate to the introduction of photographs depicting the body of the deceased and photographs of a part of the scene of the killing. The defendant contends that the admission of such photographs was not necessary to establish the corpus delicti and had no other purpose than to inflame and prejudice the minds of the jury against her. The determination of the relevancy and materiality of a photograph is ordinarily left to the sound discretion of the trial justice and the fact that the photographs were merely cumulative or that defendant admitted some of the facts thereby shown does not necessarily render them inadmissible. Wilson v. State, 31 Ala.App. 21, 11 So.2d 563; Turrell v. State, 221 Ind. 662, 51 N.E.2d 359; State v. Robinson, 201 S.C. 230, 22 S.E.2d 587; People v. Burkhart, 211 Cal. 726, 297 P. 11.

The state could not anticipate what facts defendant might admit or what defenses she might rely upon and therefore it was entitled to produce such competent and material evidence as it deemed necessary to establish the offense charged. Where photographs are competent and have a reasonable tendency to prove or disprove some material fact in issue, or shed light upon some material inquiry, they are admissible in evidence even though they may have an unavoidable tendency to cause an influence beyond the strict limits for which they are admissible. State v. Miller, 52 R.I. 440, 161 A. 222; State v. Smith, 70 R.I. 500, 41 A.2d 153. Exceptions 6 to 13 are overruled.

Exception 19 is to the admission in evidence of a map, marked state's exhibit 7, drawn by Edgar E. Maynard, employed in the engineering department of the city of Pawtucket, which showed the scene of the killing with relation to the surrounding territory. The evidence showed that the map introduced was drawn to scale; that it was prepared by one having the requisite qualifications; and that it was accurate. The rule is well established that maps illustrating the scenes of the commission of a crime and the relative location of streets or objects, if shown to be reasonably accurate, are admissible in evidence in order to enable the jury properly to understand and apply the evidence to the particular case. Exception 19 is without merit and it is overruled.

Exception 20 is to the ruling of the trial justice permitting an answer to a question relating to state's exhibit 6. This was the gun with which Virginia Boston was killed. When that ruling was made this gun was marked as state's exhibit 6 for identification, but was later allowed in evidence. The order of the presentation of testimony with reference to exhibits is largely a matter within the court's discretion and since the testimony objected to was properly connected with a relevant and competent exhibit, we see no error in its admission. Exception 20 is overruled.

Exception 22 is to the admission by the trial justice of state's exhibit 11. This was the long-barrelled black revolver left for sale by the defendant, under the name of Mrs. Helen Cooper, with the gun dealer William W. Noonan after the purchase from him of the revolver with which Mrs. Boston was killed. This black gun could only fire one shot and was offered in evidence by the state to prove that the defendant deliberately and with premeditation disposed of this weapon and purchased the gun with which Mrs. Boston was killed in order to procure a more effective instrument to assault Mrs. Boston. It was properly admitted in evidence and the defendant takes nothing by exception 22, which is overruled.

Exceptions 24 and 25 relate to rulings of the court sustaining the...