State v. Morin, 6138

• Decision Date: 05 April 1971
• Docket Number: No. 6138,6138
• Citation: 276 A.2d 476,111 N.H. 113
• Parties: STATE v. Roger MORIN et al.
• Court: New Hampshire Supreme Court

Page 476

276 A.2d 476

111 N.H. 113

STATE v. Roger MORIN et al.

No. 6138.

Supreme Court of New Hampshire.

April 5, 1971.

Warren B. Rudman, Atty. Gen. and Henry F. Spaloss, Asst. Atty. Gen., for the State.

Wescott, Millham & Dyer and Gary P. Westergren, Laconia, for defendants, Roger and Raymond Morin.

DUNCAN, Justice.

At the October 1969 term of the Belknap County Superior Court indictments were returned against the defendants herein and against three others, one of whom (Robert Morin) waived his exceptions after transfer, another of whom (Doucette) pleaded guilty, and the third (Archambeault) was acquitted after trial. The indictments against the three Morins and against Archambeault were tried together, in a jury-waived trial before Keller, J. Each of the two defendants Morin was found guilty of aggravated assault on Stephen Provencher, and of simple assaults upon George B. Courtney and Peter Adamovich.

The indictments returned against the five defendants were similar in form, except for the names of the persons involved. In advance of trial, each defendant Morin moved to quash each indictment against him upon the ground that he was charged with assaults committed by the four other defendants, and that the indictments failed to charge 'any legal responsibility for acts of said other persons as called for by RSA 590-A.' These motions were severally denied subject to exception, and following conviction the exceptions of the defendants herein to the denial of their motions to quash were transferred by the presiding justice.

Each of the six indictments before us is in substantially the following form, with appropriate variation of personal names: 'The Grand Jurors for the State of New Hampshire, upon their oath, present that Roger Morin of Laconia in the County of Belknap aforesaid, on the 4th day of May in the year of our Lord one thousand nine hundred and sixty-nine at Laconia in the County of Belknap aforesaid, with force and arms did make an assault of an aggravated nature upon one Stephen Provencher of Walpole, New Hampshire, in that he, the said Roger Morin, did in concert with Kenneth Doucette, Raymond Morin, Robert Morin, and Arthur Archambeault, all of Laconia, New Hampshire, go to the residence of the said Stephen Provencher, then and there being the Hidden Cove Resort located on Route 11-B in said Laconia, New Hampshire and did approach and assault the said Stephen Provencher with extremely dangerous weapons designed for the purpose of inflicting aggravated, dangerous and serious bodily harm, to wit: a steel chain, a lead pipe, and a small lead hammer, and did then and there with the aid of said Kenneth Doucette, Raymond Morin, Robert Morin and Arthur Archambeault and with the aid of said dangerous weapons beat, bruise and ill treat the said Stephen Provencher by striking him upon the head and body with said dangerous weapons in order to cruelly and dangerously beat, bruise, and wound, and thereby greatly endanger the life of the said Stephen Provencher, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.'

RSA ch. 590-A (supp.), cited in the defendants' motion to quash, was enacted in 1967. Laws 1967, 346:1. At the same time, the provision of RSA 590:1, relating to accessories before the fact, was repealed. Laws 1967, 346:3. RSA 590-A:1 (supp.) provides: 'Offense Committed by Another. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.' Section 2 of the statute provides that a person 'is legally accountable for the conduct of another' when he is 'an accomplice of such other person in the commission of the offense.' RSA 590-A:2(III) (supp.). Section 3 provides that he is an accomplice if 'with the purpose of promoting or facilitating the commission of the offense, he * * * aids or agrees or attempts to aid such other person in planning or committing it. * * *' RSA 590-A:3(I) (supp.).

The indictments arose out of an affray which took place at Hidden Cove Resort in Laconia when, as could be found on the evidence, the three Morin brothers and two others undertook to even a score with Stephen Provencher following an earlier altercation elsewhere in Laconia in which Robert Morin and the defendants' father had been injured. Provencher and Courtney were construction workers in their early twenties, employed at a 'high rise' construction project in Laconia, and were residing in cottages at Hidden Cove Resort. Adamovich, then aged 39, was a foreman on the same project and with his wife and children also resided in one of the resort cottages.

It could be found that at approximately 5:00 P.M. on May 4, 1969 five young men, including the three Morins, variously armed with a steel chain, a hammer, a length of pipe, and a wooden club or paddle, appeared at Provencher's residence for the purpose of beating him. As they confronted him on the deck of his cottage, Courtney and Adamovich came to his assistance. The three prospective victims had hastily armed themselves with a stick, a golf club, and a small spade or shovel. In the encounter which followed, findably precipitated by one or more of the five defendants...