State v. Merry

• Citation: 8 A.2d 143
• Parties: STATE v. MERRY.
• Decision Date: 20 August 1939
• Court: Supreme Judicial Court of Maine (US)

8 A.2d 143

STATE

v. MERRY.

Supreme Judicial Court of Maine.

Aug. 20, 1939.

[Copyrighted material omitted.]

Exceptions from Superior Court, Hancock County.

Howard Merry was convicted of murder and he appeals from the rejection of his motion for a new trial, and brings exceptions.

Exceptions overruled, appeal dismissed and case remanded.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Franz U. Burkett, Atty. Gen., William B. Blaisdell, Asst. Atty. Gen., and Norman Shaw, Co. Atty., of Bar Harbor, for the State.

William S. Silsby, of Ellsworth, and Hodgdon C. Buzzell, of Belfast, for defendant.

DUNN, Chief Justice.

No one doubts that Frank Crowhurst was murdered. His dead body was found on Monday morning, July 25, 1938, on the floor of a small building in Gouldsboro, which he had used as a wayside place and filling station, as well as for his living quarters. The county medical examiner testified that his examination of the body disclosed wounds on the man's head, one penetrating the skull, and multiple lacerations; all the wounds could have been inflicted by an instrument with a rounded head, such as a hammer or a socket wrench. He stated it as his opinion that there were eight blows, possibly more, one or all causing violent death.

Howard Merry (respondent below, appellant here, the designations interchangeable) was suspected of the deed. He was indicted for murder.

In this State, degrees of murder have been abolished. The crime is now defined by statute as the unlawful killing of a human being, with malice aforethought, either expressed or implied. R.S., Chap. 129, Sec. 1.

Put upon his trial, before a jury, at the September Term, 1938, of the Superior Court for the County of Hancock, the respondent was found guilty of murder. He filed, to the trial court justice presiding at the term, a motion for a new trial, on the grounds that the verdict was against the evidence, and the weight of the evidence, and hence against the law. The motion was rejected.

The case is brought up, both on appeal from the rejection of the new trial motion, and on a bill of exceptions.

Save one, the exceptions are not pressed, and seem to be waived. Counsel recognize that discussion, initially, in their reply brief, of the one exception, is out of order. Nevertheless, argument in support thereof is that when, at the trial of a criminal case, a witness for the prosecution testifies as to statements of the accused, tending to show that he is guilty, the rule as to the non-permissibility of self-serving statements does not preclude eliciting, on cross-examination of the witness, the whole of the subject matter, even though statements so drawn out are favorable to him. Com. v. Britland, Mass., 15 N.E.2d 657, 118 A.L.R. 132.

No exception taken below directs attention to any ruling which precluded the respondent from eliciting any statement which he might have made to the testifying witness. The exception reserved goes to a ruling sustaining objection to this question, propounded on cross-examination, to Sheriff Hodgkins: "Did you ask him (respondent) to do anything at that time, or suggest his doing anything?"

What the witness, had he been allowed to answer, would have replied, is not shown.

Viewed from any angle, the exception is without legal merit.

This appeal from a conviction of homicide brings up for review only the record in this case, the record, in this sense, being inclusive of the stenographic transcript of the testimony upon which the conviction is based.

The proposition of the defense on the appeal is that on the evidence in entirety, the fact as to who committed the crime is in reasonable doubt.

The State contends the proof to establish that the respondent perpetrated the murder, actuated by malice as well as motive.

The evidence is, in part, circumstantial.

A conviction may rest on circumstantial evidence. This is too well established to require discussion. State v. Lambert, 97 Me. 51, 53 A. 879; State v. Terrio, 98 Me. 17, 56 A. 217; State v. O'Donnell, 131 Me. 294, 161 A. 802; State v. Cloutier, 134 Me. 269, 186 A. 604; State v. Brewer, 135 Me. 208, 193 A. 834.

To justify a conviction on circumstantial evidence, the circumstances relied on must not only be consistent with, and point to the prisoner's guilt, but must be inconsistent with any other rational hypothesis. 20 Am.Jur., Sec. 1217; Com. v. Webster, 5 Cush., Mass., 295, 52 Am.Dec. 711; State v. Lambert, supra; State v. Terrio, supra; State v. O'Donnell, supra; State v. Cloutier, supra; State v. Brewer, supra.

To be useful in evidence, a fact must be proved to be true. In the courtroom, facts are proved by the testimony of witnesses.

It is elementary, in a criminal case, that it is the province of the jury to settle the facts, and determine the reasonable inferences to be drawn therefrom. Warner v. State, 202 Ind. 479, 175 N.E. 661, 74 A.L.R. 1357. The jurors are the ultimate, rightful and paramount judges of the facts. State v. Wright, 53 Me. 328.

It may be noticed here, quite as well as anywhere, perhaps, that, in murder, malice aforethought must exist, and, as any other elemental fact, be established, not beyond all possible doubt, but beyond a reasonable doubt; malice is not limited to hatred, ill will or malevolence toward the individual slain; it includes that general malignancy and disregard of human life which proceed from a heart void of social duty, and fatally bent on mischief. Com. v. Webster, supra.

Malice aforethought may be expressed or implied. 4 Bl.Com., page 198. It is express when the wrongful act is done with a sedate and deliberate mind and formed design. It is implied when there is no showing of actual intent to kill, but death is caused by acts which the law regards as manifesting such an abandoned state of mind as to be equivalent to a purpose to murder. Malice includes intent and will. State v. Robbins, 66 Me. 324, 328.

A wrongful act, known to be such, and intentionally done, without just cause or excuse, constitutes malice in law. True v. Plumley, 36 Me. 466, 484; State v. Knight, 43 Me. 11, 137; State v. Albanes, 109 Me. 199, 83 A. 548.

Malice aforethought implies premeditation. 38 L.R.A., N.S., page 1055, note.

"Under the statute, there must be not only an intention to kill, but there must also be a deliberate and premeditated design to kill. Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is. The human mind acts with celerity which it is sometimes impossible to measure, and whether a deliberate and premeditated design to kill was formed must be determined from all the circumstances of the case." Earl, J., in People v. Majone, 91 N.Y. 211.

On a prosecution for murder, motive—that is, the cause or reason that induced commission of the crime—is not an essential element. State v. Ward, 119 Me 482, 111 A. 805; State v. Brewer, supra. All the acts of men cannot be explained. However, evidence of motive is admissible for the purpose of furnishing evidence tending to prove guilt, which, in connection with the whole evidence, the jury must consider. Michie, Homicide, Vol. 1, page 708.

Intent, and not motive, governs. Therefore, a conviction for murder may be had, where, without reference to the motive which prompted it, there was an intention to do the criminal act. State v. Jaggers, 71 N.J.L. 281, 58 A. 1014, 108 Am.St.Rep. 746; People v. Hegeman, 57 Misc. 295, 107 N.Y.S. 261. Sane men are regarded as acting from motive. State v. Neal, 37 Me. 468, 470; State v. Gilman, 69 Me. 163, 31 Am.Rep. 257.

There was testimony at the trial, by at least four State witnesses, that on Sunday, July 24, between 2 o'clock in the afternoon and about 7 in the evening, Mr. Crowhurst was seen, alive and well, in and about his place of business; still others, some of them called by the State, and some by the defense, place him there later than that.

Irving Hinckley, who, on the morning of July 25, found Crowhurst's dead body, had come to the station, accompanied by his wife, to buy gasoline. The time, on his estimate, was between 8 and 9 o'clock. No person, so he said while on the stand, was in sight; blowing of his automobile horn provoked no response; his halloos went unanswered. Witness thereupon entered the building through the usual door, which was closed, but unlocked; he found the shades drawn, and no lights burning; the corpse, which he recognized as that of the man he had known as Mr. Crowhurst, was on the floor, in the entrance of a small door leading behind a bar.

Not only was there blood, a large pool, in the manner of description of this and other witnesses, on the floor, where the man had been felled or overpowered, but there were blood spots on the surrounding walls, five feet, even higher, from the floor. In the victim's clenched fist was some grayish hair, later determined, on test, so a witness for the State testified, to be the dead man's own.

Irving Hinckley's testimony affords room for legally valid inference that, although he looked to see what, in the building, might be seen, he saw no signs of a scuffle, of ransacking, or of theft. Other witnesses for the prosecution testify in the same tenor.

For the defense, two witnesses suggest the motive of thievery. Of this, more presently.

Evidence introduced by the State is that there was money in the dead man's clothing, rings on his fingers, and a watch in his pocket; a cash register and its contents were apparently intact; a trunk where, in his lifetime, the decedent was accustomed to keep money, and in which, on the lock being pried and the trunk opened, money was found, was, for anything tending to indicate otherwise, in its usual...