State v. Greenleaf

• Citation: 54 A. 38,71 N.H. 606
• Parties: STATE v. GREENLEAF.
• Decision Date: 30 December 1902
• Court: Supreme Court of New Hampshire

54 A. 38

71 N.H. 606

STATE

v. GREENLEAF.

Supreme Court of New Hampshire. Belknap.

Dec. 30, 1902.

Exceptions from superior court; Wallace and Pike, Judges.

George H. Greenleaf was convicted of murder in the first degree, and excepts. Exceptions sustained.

Indictment charging the defendant with the murder of Nancy J. Folsom. The defendant was indicted in Merrimack county. On his motion the venue was changed to Belknap county, where the trial took place at the November term, 1901, of the superior court, Wallace, C. J., and Pike, J., presiding. The jury returned a verdict of guilty of murder in the first degree. Judgment was ordered on the verdict, and the defendant filed a bill of exceptions, which was allowed. After the jury were impaneled, and issue was joined, and as counsel was about to make an opening statement, the defendant moved for his discharge on the ground that he had not been furnished with a list of the state's witnesses, and the place of abode of each, 24 hours before the trial A list of the witnesses had been seasonably furnished, but it omitted to state the place of abode of each, and this fact was known to the defendant's counsel when the drawing of the jury began. The motion was denied, and the defendant excepted. In opening, counsel detailed the facts which the state expected to prove, and said: "We think, if we show this array of facts, that Greenleaf, in order to escape the conclusion that he committed this deed, must show you what he did with that pair of overalls, how this human blood became spattered over his clothing, and where he was on the afternoon of the crime." Exception being taken to the language quoted, counsel expressed a willingness to withdraw any objectionable remark, and stated that he meant to say that, if the facts detailed were proved, there could be only one conclusion from them. The court thereupon stated to the jury that the defendant was not obliged to answer, nor to testify, nor to explain anything, and instructed them to disregard any remark of counsel conveying a contrary impression. Dr. Beaton, an expert witness called by the state, testified subject to exception that the blow which caused the fracture upon the side of the skull was light in comparison with the other blows inflicted, and that the appearance of the wounds in the soft and bony tissues indicated that the fracture resulted from more than one blow. Lafayette, a witness for the state, whose abode was set out in the witness list as Haverhill, Mass., was in Laconia when the list was furnished to the defendant. Stetson, a witness for the state, who had been living for eight days at the county farm in Boscawen, and whose abode was so set out, testified that his home was in Concord. The testimony of these witnesses was admitted subject to exception. The court found that the list correctly stated their places of abode. The facts relating to other exceptions taken to rulings of the court and remarks of counsel are stated in the opinion.

The state's evidence tended to prove the following facts: The Cat Hole Road, so called, is a highway running from the Merrimack county buildings in Boscawen to High street in the same town. There are no dwellings on the road. Shortly before 3 o'clock in the afternoon of October 23, 1901, Mrs. Poisom started from her home, located on High street in Boscawen, to drive with a horse and buggy to North Boscawen, by way of the Cat Hole Road. About 15 minutes past 4 she was found lying beside the road in an unconscious condition, her skull having been beaten in by three or more blows with some blunt instrument. She died from these injuries in the evening of the same day. An examination showed that there had been no rape, nor was the underclothing upon the body torn or disarranged. The place of the crime was distant 5,271 feet from the county buildings. It was Mrs. Folsom's custom to drive over the Cat Hole Road at about the same time each day, to meet her daughter, who usually came from Concord by an afternoon train. This was known to the defendant, who was a convict at the county farm. He had frequently been in the vicinity where the crime was committed, was there the day before, and on more than one occasion had spoken to Mrs. Folsom. About 10 days before the crime he said to a witness that he would like to have sexual intercourse with Mrs. Folsom, and repeated the remark the following day, adding that he "stood pretty well" with her. He told another witness that he had a "chewing match" with Mrs. Folsom, and two or three days before the crime he said to a third witness that he would have sexual intercourse with her, dead or alive. The day of the crime was the first on which Mrs. Folsom had driven over the Cat Hole Road alone, when there were no persons in the vicinity, after these remarks were made by the defendant. About half past 2 o'clock in the afternoon of October 23, 1901, the defendant was seen to leave the county buildings and go toward the place of the crime. He was not seen again until about half past 4 o'clock, when he came from that direction behind the cows. Prior to that time he had worn two pairs of parti-colored prison overalls, the outside pair being the shorter by about two inches. On the morning after the crime the defendant was locked up, and his clothing was taken from him. He then wore a duck jacket, blouse, one pair of overalls, shoes, stockings, shirt, and hat An examination disclosed stains of human blood on the jacket, blouse, and shoes, and also on a towel which was found in his possession. The overalls taken from him had been worn since October 12th, but underneath another pair. The defendant had lost his right arm, and the right-hand pocket of the overalls taken from him showed that it had not been used. When the defendant was ordered to remove his clothing, he trembled violently; and, when asked if it was not too cold to go without drawers, he replied that he had worn an extra pair of overalls, but had torn them, and had left them at the bathroom door. On the following Sunday a pair of overalls were found hidden in a heap of brush in the vicinity of the pasture from which the defendant drove cows at a point 1,873 feet from the Cat Hole Road and 2,751 feet from the place of the crime. These had a rent in the leg near the crotch, as had also the outside pair worn by the defendant a day or two before the crime. They appeared to have been somewhat soiled by wear, and were spattered with blood. The right-hand pocket had not been used. The overalls taken from the defendant on the morning after the crime measured 3 1/2 inches in the leg, and had a total length of 52 inches; the pair found measured 30 inches in the leg, and had a total length of 49 1/2 inches. Footprints made on the day of the crime by a person wearing shoes like those of the defendant were found going in both directions over the Cat Hole Road from a point near the place of the crime towards the county buildings. On the morning after the crime the defendant said that on the day before he went on the Cat Hole Road only as far as a reservoir, visible from the county buildings. He afterwards stated that he might have been as far as some chestnut trees, which were well over a hill toward the scene of the crime.

Edwin G. Eastman. Atty. Gen., and David F. Dudley, for the State.

Nathaniel E. Martin and Charles F. Flanders, for defendant.

REMICK, J. 1. The exceptions relating to the sufficiency of the witness list and to the time of furnishing the same are overruled, for reasons well expressed in Lord v. State, 18 N. H. 173, 176.

2. The statement of the solicitor in opening, to which exception has been taken, does not, upon any fair construction, involve a declaration that the respondent was personally bound to become a witness, and answer the state's evidence, or stand convicted; but means only that the facts proposed to be shown, unless in some way met in defense would constitute indubitable proof of guilt. If the language used might, unexplained, be understood in the objectionable sense, such misunderstanding was made impossible by the immediate instruction of the court.

3. The force of the blow on the side of the head, in comparison with the other blows, and the number of blows necessary to cause the cuts on the top of the head, in the absence of direct evidence, could only be determined by the appearance of the wounds, viewed with a knowledge of the structure of the skull and its capacity for resistance at the points of impact. As the significance of the wounds might not be as apparent to a juryman as to one having technical training and professional experience in such matters, we think the evidence of Dr. Beaton was competent. State v. Knight, 43 Me. 11, 130; State v. Pike, 65 Me. 111; Commonwealth v. Piper, 120 Mass. 185; Colt v. People, 1 Parker, Cr. R. 611, 620; Gardiner v. People, 6 Parker, Cr. R. 155; People v. Schmidt, 168 N. Y. 568, 509, 578, 61 N. E. 907; Davis v. State, 38 Md. 15, 37; State v. Clark, 34 N. C. 151; State v. Morphy, 33 Iowa, 270, 272, 11 Am. Rep. 122; State v. Porter, 34 Iowa, 131.

4. The objection to each witness for the government as offered, upon the ground of the insufficiency of the list, like the objection to the list itself, is overruled, and upon the same authority and for the same reasons.

5. It was a vital question in the case whether certain fractures of the top of Mrs. Folsom's skull were caused by blows inflicted by the respondent, or by contact with a stone in the ground while accidentally falling from her carriage. The state claimed that, if the impact had been the result of a fall, as contended by the respondent. It would not have crushed the skull at the top in the way it appeared; that the thickness of the skull at that point would have protected it; and that the fracture would have been at the base of the skull, where it is comparatively thin. In this view, we think, it was competent for the state's medical expert to illustrate by...