State v. Mannion

• Decision Date: 01 February 1927
• Citation: 136 A. 358
• Parties: STATE v. MANNION.
• Court: New Hampshire Supreme Court

136 A. 358

STATE

v. MANNION.

Supreme Court of New Hampshire. Rockingham.

Feb. 1, 1927.

[COPYRIGHT MATERIAL OMITTED]

Transferred from Superior Court, Rockingham County; Branch, Judge.

Thomas M. Mannion, Jr., was convicted of murder. Transferred. Exceptions overruled.

Indictment for murder. Trial by jury and verdict of guilty.

The state's evidence tended to prove that the defendant on April 24, 1925, at a point on Little Harbor road, so-called, in Portsmouth, killed his wife by cutting her throat with a razor. The defendant claimed that his wife committed suicide. Further facts are stated in the opinion.

Various exceptions were taken to the admission of evidence, to the refusal of the court to grant certain requests for instructions, to the charge, and to the Attorney General's argument.

Jeremy R. Waldron, Atty. Gen., and Stewart E. Rowe, of Exeter, for the State.

Irving A. Hinkley, of Lancaster, and John L. Mitchell and Joseph D. Sullivan, both of Portsmouth, for defendant.

MARBLE, J. Immediately after the commission of the alleged crime, and before Mrs. Mannion's body had been removed, certain photographs were taken showing the body as it lay in the road. These photographs were offered through a witness, who testified that his occupation was that of a photographer, that he had been called to Little Harbor road on April 24, and that he had there "photographed Mrs. Mannion." The defendant objected to the admission of the photographs, because the rule governing their admission had not been complied with, because they had no tendency to convey to the jury anything that could not be adequately conveyed by words, and because they were calculated to appeal to passion and prejudice. Subject to his exception, they were marked as exhibits and admitted in evidence, after which they were fully explained by the witness and then examined by the jury.

The witness was clearly qualified to stand as "testimonial sponsor" for the exhibits in question. He must have observed the body in order to photograph it, and the fact that he was a photographer by occupation was at least prima facie evidence that the photographs were properly taken. His affirmation that they represented what he had observed could be "implied from his very oath." 2 Wig. Ev. § 793, citing State v. Fox, 25 N. J. Law, 566, 602. Moreover, the photographs were fully verified before the jury saw them. Their admissibility did not depend upon whether the objects they portrayed could be described in words but on whether it would be useful to permit the witness to make his description clearer in that way. 2 Wig. Ev. § 789. The determination of this question, as well as of that relating to the claim that they were calculated to excite passion and prejudice, was for the trial court. State v. Hause, 82 N. H. 133,136, 130 A. 743, and cases cited.

The same rule applies to the admissibility of a photograph taken later at the rooms of an undertaker. Whether this photograph was sufficiently identified as a correct representation of the subject was a matter to be decided by the presiding justice. Pritchard v. Austin, 69 N. H. 367, 46 A. 188; Parker v. New Boston, 79 N. H. 54, 104 A. 345; Cross v. Company, 79 N. H. 116, 120, 105 A. 411.

2. A witness called by the state testified that she had met the defendant and his wife on Little Harbor road on the afternoon of April 24. To the question, "Did you take much notice of those people as you met them there?" she answered, "Yes; I did." And, on being asked the reason, replied: 'Why, the first thought that came into my mind was it was afternoon, and I wondered why the man wasn't working, and then I looked at his face and he looked so—-" At this point counsel for the defendant interposed an objection, and the sentence was not finished. After counsel had completed the examination of the witness, the court said to her: "You started to say that you took particular notice of the man because of something—some appearance of his face. Now what did you start to say?" Subject to the defendant's exception, the witness answered: "He looked very downcast; I thought he must be out of work." The defendant's motion to strike the answer from the record was denied, and the defendant excepted.

The contention that the question assumed matters that were not in evidence is untenable. Obviously the court did not attempt to repeat the statement of the witness with exactness, but merely endeavored to call her attention to a particular point in the direct examination that she might finish what she had been about to say. See State v. Hause, 82 N. H. 133, 137, 130 A. 743. Her description of the defendant's appearance was unobjectionable. Simoneau v. Railway, 78 N. H. 363, 364, 100 A. 551, L. R. A. 1918A, 620, and cases cited; 4 Wig. Ev. § 1974, and cases collected in the note.

3. The first investigation of Mrs. Mannion's death was conducted by the city marshal of Portsmouth, who secured the services of the medical referee, made arrangements for taking photographs, inspected the locality, and talked with witnesses, including the defendant. He stated on cross-examination that he had testified at the preliminary hearing in the municipal court, and, while he had answered fully and truthfully the questions which the defendant's counsel had asked him, he had not volunteered all the information he then possessed. After he had been interrogated at length regarding specific matters which he had not seen fit to disclose at that time, the court asked the purpose of the examination. Counsel for the defendant claimed that it showed lack of good faith, whereupon the presiding justice stated that it showed nothing of the kind, and said he thought the attorneys for the state ought to object to objectionable evidence. He then instructed counsel to "discontinue that line of inquiry." To this ruling and statement of the court the defendant excepted.

Bad faith implies an improper motive. The city marshal was a public officer charged with the duty of enforcing the law. He was under no obligation to assist the defendant in the preparation of his defense. The testimony, at most, was merely indicative of interest in the cause of the state. The court correctly ruled that it did not show a lack of good faith, and that it was objectionable when offered for that purpose.

Practically the entire cross-examination, comprising over fifty questions and answers, had been directed to the subject of the marshal's failure to volunteer information. He freely admitted that he had given no information except in response to counsel's inquiries. The court did not strike out this testimony as irrelevant (Watson v. Twombly, 60 N. H. 491, 493), but simply stated that it did not prove what counsel claimed. So far as it was material on any other collateral issue it stood, and the power of the court to limit cross-examination on such issues is undisputed (Free v. Buckingham, 59 N. H. 219, 226; Baldwin v. Wentworth, 67 N. H. 408, 36 A. 365; Emerson v. Lebanon, 67 N. H. 579, 39 A. 466; Willard v. Sullivan, 69 N. H. 491, 45 A. 400; Farnham v. Anderson, 75 N. H. 607, 76 A. 191; Crawford v. Railroad, 76 N. H. 29, 32, 78 A. 1078; State v. Fogg, 80 N. H. 533, 534, 119 A. 799, and cases cited; State v. La Bombarde, 82 N. H. ——, 135 A. 268.

4. On the evening of April 25, the defendant, who had been in hiding, gave himself up. The witness who took him to the police station, called by the state, testified that he asked if his wife was dead, and explained his possession of the razor, but that he (the witness) did not remember the rest of the conversation. On the state's assertion of surprise at this statement, the court permitted the state to cross-examine the witness. The general exception to the granting of this privilege presents no question of law. State v. Roach, 82 N. H. 189, 190, 131 A. 606; Dow v. Dow, 77 N. H. 150, 151, 89 A. 450; Whitman v. Morey, 63 N. H. 448, 456, 2 A. 899; Gerrish v. Gerrish, 63 N. H. 128; Bundy v. Hyde, 50 N. H. 116, 120.

During the cross-examination which followed, the witness stated that he had returned to the police station that night after leaving the defendant there, and had talked with the Attorney General and city marshal, and that a stenographer had been present. The defendant excepted to "refreshing the recollection" of the witness by the use of a document which purported to be a record of what the witness had said on that occasion. At the request of defendant's counsel, the document was shown to the witness.

It is now urged that the witness could not be cross-examined as to any supposed discrepancies between his testimony and this document until the document had been regularly introduced in evidence. Villineuve v. Railway, 73 N. E. 250, 252, 60 A. 748. The practice sanctioned in the Villineuve Case has been characterized as a poor one. 2 Wig. Ev. (2d. Ed.) § 1263, p. 894, note. But, whether good or bad, it is inapplicable here. The document comprised simply the transcribed notes of the stenographer, and was not admissible. The cross-examination had reference merely to the oral statements of the witness.

At the close of the examination the court inquired of the witness, "Now, tell us, did Mannion on that night admit to you in any form of words that he killed his wife?" The defendant excepted, and the witness replied, "No sir; I don't remember it." In view of this response, it is difficult to see how the inquiry, even if improper, could have harmed the defendant. But counsel argue that the jury must have inferred from the questions and conduct of the presiding justice that he did not believe the witness. The complete answer to this contention is found in the charge. Not only were the jurors warned not to indulge in conjecture regarding the views of the judge who had not intended to indicate any, but were expressly instructed that they could not speculate on whether or not the witness had made inconsistent statements, since there was no evidence that he...