State v. Hachey
| Decision Date | 08 June 1971 |
| Citation | 278 A.2d 397 |
| Parties | STATE of Maine v. James G. HACHEY, Jr. |
| Court | Maine Supreme Court |
Peter T. Dawson, Asst. Atty. Gen., Augusta, for plaintiff.
Vafiades & Brountas, by Lewis V. Vafiades, Susan R. Kominsky, Bangor, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.
This is an appeal from the Defendant's conviction following a jury trial of the murder of one Harold E. Buzzell. The Defendant, both at trial and on appeal, was considered to be indigent and, therefore, was represented by Court appointed Counsel.
The Indictment, following the suggested form (Form 4) of the Maine Rules of Criminal Procedure, alleged that the Defendant at a stated time and place 'did unlawfully and with malice aforethought kill one Harold E. Buzzell.' In the brief, for the first time, it was argued that the Indictment was defective for two reasons: 1. The word 'willfully' is absent; 2. It is not alleged that Harold E. Buzzell was a human being. There iis no merit in either of these contentions. M.R.Crim.P. Rule 58 states: 'The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.' Furthermore, the caption of this Indictment is clear in specifying that the document was an 'Indictment for Violation of Title 17, M.R.S.A. Section 2651 (MURDER)'. The language of the statute is 'Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder * * *.' Thus, it is clear that the Indictment alleges the elements of the crime and that, by either referring to the statute, or by using common sense, there is no doubt that the charge is for nurdering a human being. This conclusion is supported by the authorities, 'In general it is unnecessary to allege that the person killed was a human being * * *.' 40 C.J.S. Homicide § 145e. In Palmer v. People (Ill.1891) 138 Ill. 356, 28 N.E. 130, interpreting a statute identical to the Maine statute, the Court said, See also Woods v. Commonwealth (Va. 1924) 140 Va. 491, 124 S.E. 458.
The Indictment here does not allege that the act of the Defendant was done 'willfully' but does describe the act as being done with malice aforethought. Under these conditions the use of the word 'willfully' may be dispensed with since the expression 'malice aforethought' is of like meaning, though more intense, and makes unnecessary the allegation of willfulness. Bishop's New Criminal Procedure, Vol. 3, §§ 543 and 545 (2nd ed.). These points are without merit. Ellis v. State (Me.1971) 277 A.2d 120.
The points of appeal are thus stated:
In order that we may deal intelligently with these issues it is necessary that we summarize the facts disclosed by the rather lengthy record.
Sidney Buzzell, son of the decedent, operated a store in Sangerville. On July 12, 1968 he was in the store, as were his wife and others. At about 6:00 p. m. the Defendant entered the store but, after a brief conversation, left and returned an hour later. He then made some purchases but, stating that he had forgotten his pocketbook, left saying he would return later. He was next seen at approximately 7:30 p. m. when he stopped his red Corvair at the gas pumps and began to fill his gas tank. Sidney Buzzell went out to wait on him and, as requested, got a quart of oil, which he gave to the Defendant. They then entered the store and the Defendant was presented his bill for the previous purchases plus the gas and oil. At this point, Sidney Buzzell was facing the Defendant from behind a counter, being observed by Mrs. Buzzell. The Decedent was standing near a cooler and another person was seated close by.
The Defendant's acts were described by both Sidney Buzzell and his wife in somewhat comparable terms. Mr. Hachey 'pulled out a gun' and is quoted as saying, 'This is a hold-up' or 'stick-up'; 'You put money in the bag.' Sidney Buzzell said, 'Are you serious,' to which the Defendant replied, 'This is to show I'm serious,' and proceeded to fire one shot into a wall of the store at an elevated angle. At this point Harold E. Buzzell apparently made a move in the direction of the Defendant who struck him on the neck and then, as Sidney Buzzell described it, 'brought the hand with the gun in it down and shot again and this is when my Dad sort of stumbled backwards.' Mrs. Ruth Buzzell was asked this question:
Following the shooting, Harold E. Buzzell fell to the floor and his son made an unsuccessful effort to hold the Defendant, who fled from the store, entered his car and drove away. Sidney Buzzell had observed the registration number of the red Corvair and immediately, by telephone, gave this information to the police agencies.
The Piscataquis Sheriff, James Buzzell, was in the vicinity and, by radio, was given this descriptive information plus the fact that there had been a 'hold-up and shooting.' Shortly thereafter he observed a car which coincided with the description given him and made an effort to stop it. This was followed by a pursuit over gravel roads at high speeds and ended in the proximity of 8:00 p. m. when the red Corvair went out of control, upset and came to rest on its right side in some bushes. The Sheriff, being alone, stopped his car about 50 feet distant and walked toward the wrecked vehicle, where he observed the Defendant therein. He ordered the Defendant to get out, which he did, after requesting assistance from the Sheriff. The Sheriff then said: 'I placed him under arrest and took him back to my car where I had the handcuffs.' Shortly a Deputy arrived and the Sheriff, leaving the Defendant with the Deputy, walked back to the red Corvair, looked in and, on the floor, saw 'the butt end of a revolver with white handles.' A wrecker was called and, when it had righted the Defendant's car, the Sheriff, never having left the scene, opened a door and took out a .22 caliber revolver with a white handle containing four spent shell casings. The Defendant was then taken from this scene to the County Jail.
The Defendant participated in filing the brief in this case and raised the issue that the revolver was taken from the car by Sheriff Buzzell 'in violation of his constitutional rights under the guarantee of the Fourth and Fourteenth Amendments.' The facts clearly indicate that Sheriff Buzzell, at the scene of the arrest and while the Defendant was still present, looked into the vehicle and saw a .22 revolver in plain view. Because of the demolished condition of the car, he could not then remove it and did so only when a wrecker had righted the vehicle. At this time he had knowledge that there had been a serious offense committed and had every valid reason to have placed the Defendant under arrest. The Sheriff was then in a position to see the revolver. It was his plain duty to take it into his possession immediately and, in so doing, violated no constitutional prohibitions. This issue clearly falls within the scope of Harris v. United States (1968) 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. See also State v. Chapman (Me.1969) 250 A.2d 203; Commonwealth v. Cohen (Mass.1971) 268 N.E.2d 357.
Meantime, Harold E. Buzzell had been taken to a local doctor for emergency care and then, by ambulance, to the Eastern Maine Medical Center at Bangor. He received surgical treatment from Dr. Lloyd Brown, who described the injury as starting from an abdominal wound just below the ribs in the midline and terminating at the twelfth dorsal vertebrae, in the course of which the liver was lacerated twice and the stomach once, and which had produced a paraplegia of the lower extremities. Four days later this same doctor found it necessary to perform a tracheotomy. In the care of Mr. Buzzell, an internist, Dr. Holzwarth, was used who described Mr. Buzzell as being a person with an enlarged heart, a developing pneumonia and diabetes. A Dr. McEvoy, in Dr. Brown's absence, treated Mr. Buzzell from July 29 until his death on August 2. Dr. Holzwarth testified: 'I think he died of infection.' He explained that the effect of the bullet passing through the abdomen and the stomach was to create a condition which produced an infection. Dr. McEvoy concurred with this opinion and attributed the sepsis and other conditions resulting in death to the original damage caused by the passage of the bullet through the abdomen.
Dr. Rudolph Eyerer, pathologist, performed an autopsy on the body. He was subject to extensive cross examination but the Jury could have accepted these excerpts...
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