State v. Mosley

• Decision Date: 06 November 1934
• Citation: 175 A. 307
• Parties: STATE v. MOSLEY.
• Court: Maine Supreme Court

175 A. 307

STATE

v. MOSLEY.

Supreme Judicial Court of Maine.

Nov. 6, 1934.

On Motion, Exceptions, and Appeal from Superior Court, Hancock County.

Linwood H. Mosley was convicted of murder. On appeal, motion, and exceptions.

Motion and exceptions overruled, appeal dismissed, and judgment for the state.

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

Clyde R. Chapman, Atty. Gen., and Percy T. Clarke, Co. Atty., of Stonington, for the State.

Blaisdell & Blaisdell and Fred L. Mason, all of Ellsworth, for respondent.

PATTANGALL, Chief Justice.

Appeal and exceptions. Respondent, indicted for murder, was tried and convicted of that crime. A general motion, in the usual form, to set the verdict aside was filed below and overruled. Appeal was taken. Exceptions to the admission of certain evidence were seasonably taken and allowed. Later, motion was filed for new trial on newly discovered evidence. At the hearing before this court; it was also urged that the failure of the presiding justice to sufficiently state the law as to one feature of the case was cause for new trial and might properly be considered under the appeal, no instructions having been requested and no exception taken covering the point.

The record admits the homicide. There is no dispute but that respondent shot and killed one Elwood Gilley. It is not claimed that he intended to do so. The theory of the state was that respondent intentionally shot and wounded one Delia Hooper and, in doing so, by mischance killed Gilley who was standing near her. The theory of the defense was that respondent did not intend to shoot anybody, but that a gun held by him was accidentally discharged; the injury to Mrs. Hooper and the death of Gilley resulting.

It appeared that respondent and his wife, with Gilley and Mrs. Hooper, were spending the day together, a portion of the time at a lobster pound and the remainder at a farm belonging to respondent. During the day, respondent and the two women drank more or less liquor. The four ate lunch together and, after lunch while the men were temporarily absent, the women took a short nap. After the men returned, respondent and his wife walked to the pasture to look at some cows; Gilley and Mrs. Hooper remaining at the farm house. There was no evidence of drinking after lunch time, but there was evidence tending to show that during the earlier portion of the day, Mrs. Hooper and Mr. Mosley were intoxicated. There is also evidence tending to show that respondent made improper advances to Mrs. Hooper which she rejected. In the late afternoon, the party was about to break up and preparations were being made to leave the farm when the shooting occurred.

In the corner of the kitchen of the farm house were two shotguns, one belonging to respondent, one to Gilley. It was with the latter weapon that the shooting was done. There were but four persons present when it occurred, respondent, his wife, Mrs. Hooper, and Gilley. Respondent did not avail himself of his right to testify. The jury, therefore, was dependent upon his wife and Mrs. Hooper, so far as oral evidence was concerned, for the necessary information upon which to base its verdict. According to Mrs. Hooper, respondent pointed the shotgun directly at her head. Observing his action, Gilley who was standing between them threw up his arm either to protect her or to interfere with respondent's aim. The weapon was discharged and the shot took effect in Gilley's arm and chest and in Mrs. Hooper's face and neck.

According to Mrs. Mosley, respondent, at Gilley's request, started to take the gun from the house to hand it to its owner, who had asked for it, and while respondent was standing in the doorway, Gilley and Mrs. Hooper being outside, she (Mrs. Mosley), not knowing the exact situation, abruptly closed the door in such a way that it struck her husband and caused the accidental discharge of the gun.

The jury apparently accepted Mrs. Hooper's version and rejected that of Mrs. Mosley. In support of the general motion, counsel for respondent argued, and not without support in the record, that Mrs. Hooper's story presented certain inconsistencies and contradictions which tended to discredit her. The claim is made that she was intoxicated and therefore unable to remember just what did happen and that she has, at different times, varied her relation of the events.

The evidence of intoxication is not carried to a point which would convince that she was not capable of appreciating everything of importance that occurred, nor does the fact that in minor details she was somewhat vague and uncertain indicate that she was not truthful as to the main facts which her testimony tends to establish. Respondent shot and killed Gilley. He shot and wounded Mrs. Hooper. There is no doubt about either of these facts. Mrs. Hooper may be wrong as to the place where respondent was standing when he did the shooting and as to where she and Gilley stood. But we are not impressed with the importance of the evidence on these points, nor would we regard it as remarkable that after such an occurrence she should be somewhat confused as to the exact details of the events immediately preceding the shooting. The evidence indicates that the shots were fired from a gun held at the shoulder of respondent and pointed directly at Mrs. Hooper's face. Her wounds and those of Gilley, shots lodged in a building near where they were standing, tend to sustain such a theory. The jury was entirely justified in assuming that the witness was endeavoring to answer truthfully and that her testimony, so far as it bore upon the real issue, was correct and could safely be relied upon.

On the other hand, the only other witness who testified regarding the main facts was the wife of the respondent, who was successfully impeached and whose story is inherently improbable. We cannot say that the jury erred in rejecting it.

It was also argued that the appeal should be sustained because the presiding justice neglected to instruct the jury with regard to the law concerning intoxication as affecting ability to form an intent. There was no occasion to do so. No claim was made that respondent was sufficiently under the influence of liquor to require such an instruction and there was no evidence warranting it On the contrary, the opposite appeared.

The situation was entirely unlike that in State v. Wright, 128 Me. 404, 148 A. 141, on which respondent relies. In that case, the issue was whether or not respondent was guilty of involuntary manslaughter; the homicide having been caused by his negligent act. The presiding justice instructed the jury that there was no distinction between criminal and civil negligence and, although no exception was noted, the instruction was so plainly wrong and the point...