State v. Noakes

• Court: Vermont Supreme Court
• Writing for the Court: THOMPSON, J.
• Citation: State v. Noakes, 70 Vt. 247, 40 A. 249 (Vt. 1897)
• Decision Date: 18 December 1897
• Parties: STATE v. NOAKES et ux.

40 A. 249

70 Vt. 247

STATE

v. NOAKES et ux.

Supreme Court of Vermont. Washington.

Dec. 18, 1897.

Exceptions from Washington county court.

Martin and Sarah Noakes were convicted of manslaughter in the second degree, and they excepted. Exceptions sustained.

Fred A. Howland, State's Arty. Fred L. Laird, for respondent Martin Noakes.

S. C. Shurtleff, for respondent Sarah Noakes.

THOMPSON, J. The respondents, who are husband and wife, are jointly indicted for the alleged murder of the infant child of one Emma Jones, and also as accessories before the fact to the alleged murder. The Indict ment charges that the respondents, "with force and arms, feloniously, willfully, deliberately, with premeditation, and of their malice aforethought, did kill and murder" said child, but does not set forth the manner in which, nor the means by which, the death of the deceased was caused. The defendants demurred to the indictment on the ground that it "does not apprise the respondents specifically, as required by the constitution of Vermont and of the United States, of the manner and form by which the state claims said murder to have been committed." The demurrer was overruled pro forma, and the indictment adjudged sufficient, to which the respondents excepted.

The indictment is drawn in conformity to the provisions of V. S. § 1907, which reads as follows: "In an indictment for murder or manslaughter, the manner in which, or the means by which, the death of the deceased was caused, need not be set forth, but it shall be sufficient in any indictment for murder to charge that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased, and in an indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased." The respondents contend that this section of the statutes is unconstitutional, for the reason that it violates that part of article 10 of the declaration of rights in the constitution of Vermont which declares that, in all prosecutions for criminal offenses, a person has a right to demand the cause and nature of his accusation. They insist that the indictment does not disclose the nature and cause of the accusation, because it does not set forth the instrumentality used to commit the alleged murder, and how such instrumentality was used by the respondents to accomplish the crime charged. The provision of the constitution of Vermont referred to does not prohibit the legislature from abolishing common-law forms of accusation, except that there must be an indictment when it is required by the constitution, or from dispensing with particular allegations which are necessary at common law, provided the form substituted or allowed is sufficient to give the accused reasonable notice of the nature and cause of the charge against him. Clark, Cr. Proc. 140. The unlawful killing of a human being, with malice aforethought, is murder, whether death is produced by poison, shooting, stabbing, or by any other means. The means used to commit murder is not one of the essential legal elements of that crime, although the means used to cause death, and the manner of their use, may be evidence tending to show that the crime of murder has been committed. It is an elementary principle of pleading that it is never necessary to allege in an indictment mere matter of evidence, unless it alters the offense. Clark, Cr. Proc. 166. This indictment informs the respondents of the nature of the accusation with which they are charged, viz. the crime of murder. It also apprises them of the cause of the accusation, which is that they, with force and arms, feloniously, willfully, deliberately, with premeditation, and of malice aforethought, did kill the child named. It plainly, substantially, and formally describes the crime of murder. It is true that it does not contain all the verbiage and tautology found in the old forms. This is not necessary. A person charged with murder in the manner prescribed by V. S. § 1907, is fully informed of the cause and nature of the accusation against him. There is nothing in the constitution of Vermont which precludes the legislature from dispensing with the necessity of stating the means, manner, and circumstances of the killing in an indictment for homicide. Clark, Cr. Proc. 140; Rowan v. State, 30 Wis. 129; State v. Cumstock, 27 Vt. 556: State v. Hodgson, 66 Vt. 152, 28 Atl. 1089; State v. Camley, 67 Vt. 325, 31 Atl. 840; Newcomb v. State, 37 Miss. 383; Cathcart v. Com., 37 Pa. St. 108; Campbell v. Com., 84 Pa. St. 187; Goersen v. Com., 99 Pa. St. 388; Noles v. State, 24 Ala. 672; Wolf v. State, 19 Ohio St. 2-18; Williams v. State, 35 Ohio St. 175; State v. Verril, 54 Me. 411; State v. Corson, 59 Me. 137; State v. Morrissey, 70 Me. 401; Com. v. Webster, 5 Cush. 295; Morton v. People, 47 Ill. 469; State v. Morgan, 112 Mo. 202, 20 S. W. 456; State v. Beswick, 13 R. I. 211.

It is further contended that section 1907 is unconstitutional because it is in contravention of article 6 of the amendments to the constitution of the United States. This article is not a limitation upon the powers of the states of the Union, but upon the government of the United States, and therefore is not applicable to the case at bar. Cooley, Const. Lim. (4th Ed.) 25; Twitchell v. Com., 7 Wall. 321.

2. The respondents excepted to the ruling of the court below, allowing the state to peremptorily challenge seven jurors, and now contend that St. 1896, No. 33, § 1, which allows the state, in criminal prosecutions, the same number of peremptory challenges as are allowed the respondent, is unconstitutional. The reason urged for holding it unconstitutional is that the respondents were entitled to a trial by a common-law jury of 12 men, and that at common law the state had no peremptory challenges, and hence the granting of that right to it deprived the respondents of such a jury. This question was before this court in State v. Ward, 61 Vt 153, 17 Atl. 483, when the state, by statute, was entitled to only two peremptory challenges, and it was then held that such statute was constitutional, and did not impair the right, of a respondent to a common-law jury. If two peremptory challenges on the part of the state are constitutional, clearly six peremptory challenges, the same number allowed the respondents, are constitutional. But it is further urged that, if entitled to six peremptory challenges, the state cannot increase that number by electing to try the respondents together. Respondents tried jointly are each entitled to six peremptory challenges, the full number allowed. State v. Stoughton, 51 Vt. 362. V. S. § 2, provides that, in construing statutes, words importing the singular number may extend and be applied to more than one person or thing. Clearly, it was the intention of the legislature, by St 1896, No. 33, § 1, to give the state as many peremptory challenges as were allowed respondents tried jointly, thus putting the state upon an equality with them in this respect; and, to effectuate that intent, the word "respondent" as used in that statute is to be construed to include respondents. Hence the ruling of the county court was correct. Spies v. People, 122 Ill. 1, 12 N. E. 865, and 17 N. E. 898.

3. The state claimed that the respondent Martin Noakes was the father of the child alleged to have been murdered, and introduced evidence tending to show that he was criminally intimate with Emma Jones, the mother of the child. This claim and evidence bore upon the question whether he had any motive to commit the crime charged. As bearing upon the subject of his intimacy with the mother of the child, the state Improved one Wilbur Utton as a witness, who, under the exceptions of the respondents, testified, in substance, that in the fall of 1894 he lived in the family of the respondent Martin Noakes about two months; that there were only three rooms (a buttery, kitchen, and bedroom) downstairs in the house then occupied by the respondents, and that there were two sleeping rooms upstairs; that witness slept upstairs with respondents' son, and that one-half to one-fourth of the time Martin Noakes occupied the same room with them; that Mrs. Noakes and Emma Jones occupied the bedroom downstairs, in which there were two beds; that, when respondent Martin Noakes did not occupy the room upstairs with witness, he (witness) did not know where he did sleep, but he did not come upstairs; that while there he saw respondent Martin Noakes and Emma Jones go off together, but could not state any number of times. This evidence was admissible as tending to show the acquaintance and relation of respondent Martin Noakes and Emma Jones with each other. It tended to show that their acquaintance was so intimate that he at times slept in the same bedroom in which she slept, and that they went off together. While, taken alone, it showed nothing improper between them, it disclosed a relation ship between them which rendered it more probable that they were criminally intimate, as other evidence tended to show, than it would have been had they not been thus intimate. Men and women, without any previous acquaintance and intimacy, do not ordinarily become criminally intimate with each other. Whatever renders an alleged fact probable or improbable is proper evidence to be considered in determining whether the alleged fact exists. Armstrong v. Noble, 55 Vt. 428; Tenney v. Smith, 63 Vt. 520, 22 Atl. 659; State v. Burpee, 65 Vt. 1, 25 Atl. 964.

4. Under respondents' exception, Dr. Lindsay, a medical expert, improved as a witness by the state, was permitted to testify as follows: "Q. Is it possible, doctor, for an infant's skull to be fractured by pressure of the hands? A. Well, I should suppose it was possible." The respondents contend that it was error to admit this evidence, because there was no proof that the respondents actually crushed the skull of the child with their hands. It was properly admitted, as...