State v. Mulkerrin

• Decision Date: 12 January 1915
• Parties: STATE v. MULKERRIN.
• Court: Maine Supreme Court

92 A. 785

112 Me. 544

STATE

v. MULKERRIN.

Supreme Judicial Court of Maine.

Jan. 12, 1915.

Appeal from Superior Court, Cumberland County, at Law.

Michael J. Mulkerrin was convicted of murder, and from the overruling of a motion for a new trial he appeals. Appeal denied, and judgment on the verdict.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and HANSON, JJ.

Jacob H. Berman and Harry E. Nixon, both of Portland, and Benj. L. Berman, of Lewiston, for appellant.

Scott Wilson, Atty. Gen., and Samuel L. Bates, Co. Atty., of Portland, for the State.

SAVAGE, C. J. The defendant was convicted of murder. His motion for a new trial was overruled by the presiding justice, and the case comes before us on appeal from that decision. R. S. c. 135, § 27.

The defendant admitted the killing, and interposed the defense of self-defense. And in addition he now contends that, if he was guilty of anything, it was only manslaughter. No exceptions have been reserved, and the only question now before us is whether, in view of all the testimony in the case, the jury were warranted in believing beyond a reasonable doubt, and therefore in finding, that the defendant committed the homicide with malice aforethought express or implied. State v. Lambert, 97 Me. 51, 53 Atl. 879; State v. Albanes, 109 Me. 199, 83 Atl. 548.

We think the jury might well have found the following facts: The defendant and the deceased were brothers. On the evening of the homicide, the defendant approached a police officer on the street and said his brother, the deceased, had been chasing him with bricks, and that he wanted protection; that the officer told him to go to the police station and swear out a warrant, and that the brother should then be arrested; that the defendant replied, "I don't care anything about the station or court, I want protection;" that he refused to swear out a warrant; that he was very much excited; that a few moments later he said to the officer, "I will get a gun and I will shoot the son of a bitch;" that he then went to his sister's house, where he was living, changed his clothes, took a revolver from a drawer in his sister's room, put it in his hip pocket, and went to his brother's stable, arriving there not more than 15 or 20 minutes after he left the officer. All of this, except the threat to shoot, is admitted by the defendant. There was also believable evidence that after the homicide he said to the same officer in effect, "I told you I would shoot him, and I did."

What actually took place in the stable is in dispute. The dying declaration of the deceased was admitted in evidence. And since its admission was hotly contested, we will add that it was properly admitted. The dying declaration was in these words:

"I was standing in the stall, facing the manger. I was shot from the back. I looked around; I see Mikey (the defendant), and he fired five or six more shots, and he says, 'I will kill you, you bastard.'"

The defendant's story, so far as it is material to the vital issue, is in these words:

"I went into the barn, and Pat (the deceased) was standing right up near the door, and I says to him, 'Pat, if you don't leave me alone I am going up to swear out a warrant for you and protect myself, and I will carry a gun to protect myself.' I walked in the barn, and he walked way back in the barn kind of like in the stall, and he hit me with a broom, and then he run out to the door, and he shut the door, and he hugged for me. I said, 'If you don't let me go, I will shoot you,' and so he kept hugging, and I fired the gun and shot him. I knew he would kill me if he got the gun. He told me, 'I will kill you, Mikey.' I knew he would kill me. After that he dropped on the floor."

On cross-examination the defendant testified: That he went to the stable looking for his brother. That the brother saw him before he went in, but said nothing. That the brother went to the back of the stable as soon as he saw him come in, and still said nothing. That he (the deceased) walked into the last stall, "kind of hid in the last stall." That, after he (the defendant) said he would make complaint and get a gun, the brother came running out and shut the stable door quick and hit him with a broom. That the brother said: "I have got you now where I want you. I will kill you." That the defendant showed him the revolver, and said, "If you try any funny work, I will use it." That "he came up to me, started to hug me,...