State v. Long
| Decision Date | 16 February 1939 |
| Docket Number | No. 3058.,3058. |
| Citation | 4 A.2d 865 |
| Parties | STATE v. LONG. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Belknap County; Young, Judge.
Howard Long was convicted of murder in the first degree. Case transferred to the Supreme Court.
Execution stayed and case remanded.
Indictment, for murder in the first degree. Plea, not guilty by reason of insanity. Trial by jury and verdict of guilty, with capital punishment. The State's evidence tended to prove that the defendant killed Mark Neville Jensen, a boy about twelve years of age, by beating him over the head with an automobile jack after the boy had resisted an attempted sexual attack on him by the defendant. The crime was committed in Gilford on the evening of September 10, 1937. The defendant had once been confined in the Bridgewater State Hospital at Bridgewater, Massachusetts, as a defective delinquent.
The trial began on December 6, 1937, and was concluded on December 13, 1937. The jury having determined that the punishment should be death (P.L. c. 392, § 4), the defendant was immediately sentenced to be hanged, the day appointed for his execution being December 30, 1938. See P.L. c. 369, § 6. On December 27, 1938, defendant's counsel filed a bill of exceptions alleging error on the part of the Presiding Justice in admitting in evidence certain so-called confessions of the defendant. A bill of exceptions filed December 21, 1938, was withdrawn, not being in proper form. The Court, having found that the "attempt to transfer the exceptions was not made seasonably", disallowed the second bill. To this ruling the defendant excepted. On December 29, 1938, a reprieve was granted the defendant by the Governor, with the advice of the Council, postponing execution of the sentence until March 1, 1939.
On January 7, 1939, defendant's counsel filed a motion for a new trial, on the ground of newly discovered evidence. The material facts, stated under oath in the motion, may be summarized as follows: On October 29, 1937, the defendant was committed "into the care and custody of the superintendent of the state hospital, to be detained and observed by him" in accordance with the provisions of section 13 of chapter 11 of the Public Laws. During the period of his commitment he was examined by various physicians on the staff of the State Hospital, most of whom expressed the opinion that he was insane. These facts appear in the reports of two meetings of the staff called by the superintendent to aid him in forming his opinion. The minutes of the first meeting indicate a "unanimity of opinion" on the part of the doctors of the staff opposed to the opinion of the superintendent.
The superintendent's report to the Superior Court was as follows: "I have examined Howard Long, committed to this hospital for observation as to his sanity, and as a result of my examination have formed the opinion that he is not insane, but should be classified as a psychopathic personality." The superintendent testified to the same effect at the trial. He mentioned the fact that the defendant had been examined by certain physicians on his staff but did not state, and was not asked, what opinions those physicians had expressed.
Defendant's counsel assert under oath that "previous to January 3, 1939, neither the said Howard Long nor his attorneys had any knowledge of the said opinions that the said Howard Long was insane." They further assert that the assistant superintendent of the hospital, who, according to the reports of the meetings of the superintendent and staff, expressed the opinion that the defendant was "definitely insane" and could not "logically be held responsible for his acts", has refused "to give his affidavit relative to his said opinion as to the insanity of the said Howard Long, and the said Howard Long has good reason to believe that the other doctors who rendered said opinions that said Howard Long was insane would likewise refuse."
The motion was followed by a petition praying the Superior Court to issue process to compel the abovementioned physicians to appear before the Court and testify at the hearing on the motion.
A hearing on the motion was had on January 21, 1939, and for the purposes of that hearing "the allegations in the motion relative to the existence and extent of the so-called new evidence" were assumed by the Court to be true. The Court found that "the so-called newly discovered evidence is to some extent cumulative", that on January 3, 1939, the assistant superintendent of the State Hospital told defendant's counsel "that he kept his opinion quiet because if it was made public it would give the hospital a bad name to have it appear that the doctors disagreed with the superintendent" but that there was "no suggestion that the superintendent or anyone in behalf of the state was responsible for this doctor's attitude or did anything to keep any information any of the doctors might possess from the knowledge of the defendant's counsel", that there was no reason why any information the physicians may have had could not have been obtained as readily before the trial as in January, 1939, if reasonable diligence had been used, that the defendant had a fair trial, that no injustice was done by the verdict and that it was not probable that a different result would be obtained upon a retrial.
The motion was denied subject to the defendant's exception. Transferred by Young, J.
Thomas P. Cheney, Atty. Gen, and Harold E. Wescott, Co. Sol, of Laconia, for the State.
John S. Hurley, of Manchester, and William W. Keller, of Laconia, for defendant.
Although no definite time for the filing of a bill of exceptions was fixed by the Presiding Justice or any request therefor made by the State, the strategy of defendant's counsel in delaying action until a stay of execution was imperative cannot be commended. It is unnecessary, however, to consider counsel's contention that their bill of exceptions was seasonably filed within the meaning of rule 66 of the Superior Court (78 N.H. 688, 699).
The so-called confessions (two in number) were admitted in evidence "as tending to show" that the defendant "caused the death of Mark Neville Jensen." But the commission of the physical act of killing was conceded by the defendant's plea of not guilty by reason of insanity. Unlike the situation in State v....
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Breest v. Perrin, s. 80-1635
...it would consider the merits of these issues in view of two factors: (1) the gravity of the charges involved, citing State v. Long, 90 N.H. 103, 107, 4 A.2d 865 (1939) ("in capital cases the strict rules of procedure applicable to ordinary trial should yield to broad principles of equity an......
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State v. Nelson
...against these defendants we have considered the objections to the introduction of this evidence as if seasonably taken. State v. Long, 90 N.H. 103, 107, 4 A.2d 865; 6 A.2d 752. The second question transferred is does the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 have......
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Timmons v. Peyton
...evidenced by a writing delivered to his attorney, had entered a plea of "not guilty by reason of insanity." As observed in State v. Long, 90 N.H. 103, 4 A.2d 865, 6 A.2d 752, such a plea is in the nature of a plea in "confession and avoidance." There had been numerous discussions between pe......
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State v. Sturtevant
...alleged newly discovered evidence as a further ground. The Court made no finding upon the question of diligence (See State v. Long, 90 N.H. 103, 107, 4 A.2d 865, 6 A.2d 752), but found that 'upon a new trial a different result is not probable.' In each instance denial of the motions implied......