State v. Pike

• Decision Date: 07 April 1876
• Citation: 65 Me. 111
• Parties: STATE v. THOMAS A. PIKE.
• Court: Maine Supreme Court

65 Me. 111

STATE v. THOMAS A. PIKE.

Supreme Judicial Court of Maine.

April 7, 1876

1874.

ON EXCEPTIONS from the superior court.

INDICTMENT of the defendant for manslaughter of his wife, Margaret E Pike, at Portland, May, 1874, by seizing and dragging her by the hair of her head, and throwing her with force and violence upon a sofa, giving her mortal wounds, of which she died. The jury, some eight hours after the cause was submitted to them, returned a verdict of guilty. Meanwhile they were called into court, the defendant's counsel not being present, and listened to the reading by the judge of an opinion of the supreme court of Massachusetts, in Commonwealth v. Tuey, 8 Cush. 1, on the importance of endeavoring to harmonize their views and to agree upon a verdict.

The rulings of the court to which the defendant excepted, appear in the opinion.

C. P Mattocks and E. W. Fox, for the defendant.

C. F Libby, county attorney, for the state.

WALTON J.

This case is before the law court on exceptions.

I. The defendant excepts to the refusal of the presiding judge to allow exceptions to one of his rulings. The judge placed his refusal upon the ground that the right to except to that particular ruling had been waived. The facts are these: The defendant was indicted for manslaughter. He first pleaded in abatement; and then, after his plea in abatement had been adjudged bad on demurrer, he pleaded further that he was not guilty. The presiding judge declined to allow exceptions to the ruling upon the plea in abatement, upon the ground, that by pleading over, the defendant had waived his right to except. The defendant then excepted to that ruling. We think the ruling, holding that the defendant, by pleading over, had waived his right to except to the ruling upon his plea in abatement, was clearly erroneous. When a plea in abatement is adjudged bad on demurrer, the judgment is always respondeat ouster. By pleading over, the defendant does no more than obey the mandate of the court. To hold that he thereby waives his right to except, would be equivalent to holding that in such cases, a defendant can never except. He must plead over; and if his right to except is thereby waived, then the conclusion is inevitable, that his right to except is waived in every case. Of course such cannot be the law. We must therefore examine the plea in abatement, (which, being copied into one of the defendant's bills of exceptions, is, in our judgment, properly before us for consideration,) and see if the defendant was aggrieved by the ruling. If he was, the exceptions must be sustained. If he was not, then the exception must be overruled, notwithstanding the ruling was erroneous; for it is well settled, that a ruling, however erroneous, will not sustain an exception, if the excepting party is not thereby injured. On examination, we find that the plea alleges several grounds for quashing the indictment, every one of which is based on a separate and distinct issuable fact. The plea is therefore clearly bad for duplicity; and the ruling of the presiding judge, holding it to be bad, was correct. How, then, was the defendant aggrieved by the refusal to allow exceptions? Very clearly, he was not aggrieved. True, the refusal was based on the erroneous assumption, that by pleading over, the defendant had waived his right to except; still, inasmuch as his plea was clearly bad, and the exceptions, if allowed, could not have been sustained, the defendant was not thereby aggrieved; and upon this ground, the exceptions upon this branch of the case, must be overruled.

II. The government was allowed to introduce evidence to prove that the name of the deceased was Margaret E. Pike. The exceptions state that this evidence was seasonably objected to, " upon the ground that it was nowhere alleged in said indictment, that the name of the person alleged to have been killed, was Margaret E. Pike." We apprehend this objection was made without a careful examination of the indictment; for the indictment does distinctly allege the name of the person killed to be Margaret E. Pike; and of course it was not only the right, but the duty of the government to prove it as averred.

III. The government was allowed to prove acts of violence by the defendant upon the deceased, other than those which it was claimed caused her death. We think the evidence was admissible. It is undoubtedly true, as the learned counsel for the defendant contends, that neither proof of another distinct felony, nor proof of another distinct assault upon the deceased was admissible. But the evidence in this case was not of that description. It was limited to acts of violence on the same evening, and only a short time before her death; and for aught that appears in the bill of exceptions, was limited to acts which constituted the beginning of the quarrel which resulted in the defendant's throwing his wife upon a sofa so violently, as to cause her death immediately, or in a very short time after. We think the evidence was admissible.

IV. A government witness testified, on cross-examination, that he had been confined in jail; and then, in answer to a question from the prosecuting officer, that he was so confined for " getting tight." The question was objected to upon the ground that the records of the court which sentenced him to jail, was the only proper evidence to prove the offense for which he was confined. It is a sufficient answer to this objection, that it nowhere appears that he was confined in jail by virtue of the sentence of any court. For aught that appears, he may have been confined by a police officer, without any trial or sentence. If so, the evidence was admissible. Nothing appearing to show that the evidence was inadmissible, the objection is not sustained.

V. The government was allowed to ask one of the physicians who made a post mortem examination of the deceased, whether such a wound as they found, might have been produced by coming in contact with a body of hard material, where there were no sharp angles or points; whether it might have been produced by a hard substance padded, like a sofa; whether the clot of blood which they found could have existed twelve hours without causing death; and whether the appearance of the extravasated blood in the neck, was an indication of mechanical violence or disease. The information sought to be obtained by these questions is among the ordinary purposes for which medical experts are examined; and we see nothing objectionable in the form of the questions. We think they were properly allowed.

VI. A witness called by the defendant as a medical expert, was asked this question: " For the purpose of arriving at a correct conclusion in the case of the death of a person, where you don't know to your own satisfaction, what caused the death, how long a time should two men give to a post mortem examination?" And the witness was further asked whether four hours would be sufficient. These questions were excluded; and we think, properly. It does not appear that the witness was present at the post mortem examination of the deceased; or that he had any knowledge of the case, or the kind, or extent, of the examination needed; and it is not to be assumed that every post mortem examination will require the same length of time. The questions were too general; and if the witness was willing to answer them, his answers would have been entitled to no weight whatever. They would have been no more than the opinion of one, who, so far as appeared, had no knowledge on which to base it. We think the questions were properly excluded.

Some other evidence, offered by the defendant, was excluded; but as the defendant's counsel do not refer to it in their argument, we shall not notice it further than to say, that we have examined it, and entertain no doubt that it was properly excluded.

VII. Exception is taken to the judge's charge; not to any particular or specified portion of it, but, in the language of the exceptions, to " all matters stated in the charge." The opinion which this court entertains of such a bill of exceptions...