State v. Millette, 6331

• Decision Date: 29 December 1972
• Docket Number: No. 6331,6331
• Citation: 112 N.H. 458,299 A.2d 150
• Parties: STATE v. Joyce E. MILLETTE.
• Court: New Hampshire Supreme Court

Page 150

299 A.2d 150

112 N.H. 458

STATE v. Joyce E. MILLETTE.

No. 6331.

Supreme Court of New Hampshire.

Dec. 29, 1972.

Warren B. Rudman, Atty. Gen., and Howard B. Myers, Concord, for the State of New Hampshire.

Paul J. Liacos, Boston, Mass., and Roger B. Phillips, Concord, for defendant.

R. J. Shortlidge, Jr., Keene, by brief and orally, for New Hampshire Civil Liberties Union as amicus curiae.

GRIFFITH, Justice.

Two indictments charge the defendant with murder in the second degree, as a principal and an accomplice respectively, under the provisions of RSA 585:14 for a death allegedly resulting from a violation of RSA 585:12. A motion for particulars filed by the defendant was granted and the State then furnished a bill of particulars setting forth the acts charged. Defendant then moved to quash the indictments on numerous grounds and this was denied by the Trial Court, Flynn, J., subject to the defendant's exception. The questions of law raised by the denial were reserved and transferred by the trial court in advance of trial without objection by the State.

The defendant is a medical doctor and psychiatrist licensed to practice in this State. The indictment alleging her participation in the crime as a principal states in part that she 'did commit murder in the second degree in that on May 30, 1970, she did wilfully administer to a pregnant woman, one Mary Ellen Cann, without legal excuse a substance with intent thereby to procure the miscarriage of such woman thereby causing the death of Mary Ellen Cann. RSA 585:12, RSA 585:14.' The indictment charging the defendant as an accomplice states that she 'knowingly and wilfully for the purpose of facilitating the commission of an offense, the procurement of an illegal miscarriage, (RSA 585:12)' gave knowledge and instructions and furnished instruments to the decedent and a third person. The State's bill of particulars alleges that the decedent suffered an induced miscarriage while she was approximately three and one-half months within her term of pregnancy so that the abortion charged was of an unquickened foetus in violation of RSA 585:12, a misdemeanor.

RSA 585:14, the statute upon which these indictments are based, provides that if a person causes the death of a pregnant woman by perpetrating or attempting to perpetrate either the felony of destroying a quickened foetus (RSA 585:13) or the misdemeanor of procuring the miscarriage of an unquickened foetus (RSA 585:12), 'he shall be deemed guilty of murder in the second degree, and shall be punished accordingly.'

Among the reasons urged by defendant to quash the indictments is the following: 'New Hampshire RSA ch. 585:14 upon which this indictment is also based is unconstitutional in that it renders a defendant liable to adjudication of guilt of murder in the second degree solely upon a violation of RSA ch. 585:12 where death occurs without requiring an allegation, evidence or proof of the mens rea required for the crime of murder and further subjects such a defendant to the possibility of life imprisonment based only on the intent required for a misdemeanor (RSA 585:12) which carries a maximum term of one year or a fine of one thousand dollars or both.'

It appears that these indictments are framed on the theory that RSA 585:14 defines a distinct homicide offense. Malice aforethought, long established as an indispensable element of the crime of murder by our cases (State v. Pike, 49 N.H. 399 (1870); State v. Greenleaf, 71 N.H. 606, 54 A. 38 (1902); State v. Nelson, 103 N.H. 478, 489, 175 A.2d 814, 822, cert. denied, 369 U.S. 879, 82 S.Ct. 1153, 8 L.Ed.2d 282 (1961)) and by our murder indictment statute (RSA 601:6), is not alleged in either indictment. In view of the structure of this State's homicide law consistently integrating, as it does, the specific measure of blameworthiness termed malice aforethought, we cannot agree that RSA 585:14 creates a separate and variant murder offense which does not include malice aforethought as an element.

There were no degrees of murder at common law. Our statute on murder established degrees primarily to distinguish capital homicide and left the definition of murder to the courts. RSA 585:1; 1 Wharton, Criminal Law and Procedure s. 241 (Anderson ed. 1957). Malice aforethought is an 'unjustifiable, inexcusable and unmitigated man-endangering state-of-mind' which involves 'every attitude of mind which includes (1) an intent to kill, or (2) an intent to inflict great bodily injury, or (3) an intent to do an act in wanton and wilful disregard of an unreasonable human risk (i.e. the wilful doing of a wanton act under such circumstances that there is obviously a plain and strong likelihood that death or great bodily injury may result), or (4) an intent to perpetrate a dangerous felony.' Perkins, Criminal Law 46-48 (2d ed. 1969); State v. Pike, supra 49 N.H. at 404; State v. Greenleaf, supra 71 N.H. at 614, 54 A. 389

Mens rea in murder is more intelligibly expressed as 'malice' without the addition of the word 'aforethought' which adds nothing but confusion in view of the use of the statutory terms, 'deliberate and premeditated' in the definition of first-degree murder. See RSA 585:1; Perkins, Criminal Law, supra at 30. '(R)educed to its lowest terms, 'malice' in murder, means knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act, coupled perhaps with an implied negation of any excuse or justification.' Holmes, C.J., in Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551, 554 (1899).

The ancient ecclesiastical law of homicide harshly ruled that if a man accidently causes death because of a prohibited act, however remote from the death, the actor is liable for the death. Binavince, The Ethical Foundations of Criminal Liability, 33 Fordham L.Rev. 1, 17 (1964). In the development of the common law, malice was always a necessary element in the crime of murder but in darliest times malice was imputed in all cases of homicide occurring in the commission of a felony. Moreland, Law of Homicide 14 (1952). 'There has been, however, a tendency to retreat from the position that any felonious act must be murder, and rather to insist that for this result the act must be a dangerous one, assisted perhaps by the assumption that certain felonies such as arson, rape, robbery and burglary are inherently dangerous.' Perkins, Alignment of Sanction with Culpable Conduct, 49 Iowa L.Rev. 325, 364 (1964); People v. Pavlic, 227 Mich. 562, 199 N.W. 373 (1924).

RSA 585:1 reads as follows: 'All murder committed by poison, starving, torture, or other deliberate and premeditated killing, or committed in perpetrating or attempting to perpetrate arson, kidnapping, rape, robbery, or burglary, is murder of the first degree; and all murder not of the first degree is of the second degree.' This statute does not make murder out of homicide occurring in the commission of certain felonies but classifies as first-degree any murder committed in perpetrating these felonies.

Neither the legislature nor our court ever adopted a presumption of malice from the commission of an unlawful act whether felony or misdemeanor. While language in our cases defining murder may be construed to presume malice from a homicide occurring during the commission of the named inherently dangerous felonies (State v. Pike, 49 N.H. 399 (1870); State v. Greenleaf, 71 N.H. 606, 54 A. 38 (1902); State v. Thorp, 86 N.H. 501, 171 A. 633; State v. Nelson, 103 N.H. 478, 175 A.2d 814 (1961)) malice remains an indispensable element in the crime of murder. 'Malice is not an inference of law from the mere act of killing; but like any other fact in issue, it must be found by the jury upon competent evidence.' State v. Greenleaf, supra 71 N.H. at 614, 54 A. at 42. Our statute on indictments provides that it shall be sufficient in an indictment for murder to charge that 'the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased, and in an indictment for manslaughter to charge the defendant did feloniously kill and slay the deceased.' RSA 601:6.

The new criminal code RSA 630:1 effective November 1973, essentially restates our common-law definition of murder with greater clarity and precision. Under this statute murder in committed if a person purposely or knowingly causes the death of another or causes death under circumstances manifesting extreme indifference to the value of human life. This latter is rebuttably presumed if the actor causes death with a deadly weapon while committing, attempting to commit or in flight after committing arson, burglary or any felony against the person. RSA 626:7 II. The code substitutes a precise definition of malice in murder for the phrase 'malice aforethought' and eliminates any presumption of malice from inherently dangerous felonies unless death is caused by a deadly weapon.

The foregoing background of our law on homicide makes RSA 585:14 an anomaly if it is itnerpreted here as either directing a jury to find malice from a violation of a misdemeanor statute or dispensing with the...