State v. Rheaume

• Decision Date: 09 February 1922
• Citation: 116 A. 758
• Parties: STATE v. RHEAUME.
• Court: New Hampshire Supreme Court

116 A. 758

STATE

v. RHEAUME.

Supreme Court of New Hampshire. Hillsborough.

Feb. 9, 1922.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Andre Rheaume was indicted for murder, and convicted of manslaughter in the first degree, and the cause was transferred from the January, 1921, term of the superior court upon respondent's exceptions to the exclusion of a juror, the admission and exclusion of evidence, and to the ruling sustaining the constitutionality of Laws 1917, c. 185, §§ 6, 7, and to the charge to the jury. Verdict set aside, and new trial granted.

Oscar L. Young, Atty. Gen., George I. Haselton and Timothy P. O'Connor, both of Manchester, and Jennie Blanche Newhall, of Concord, for the State.

Cyprien J. Belanger, of Manchester, and Percy A. Guthrie, of Boston, Mass., for respondent.

SNOW, J. Upon the voir dire a juror testified that upon information obtained from reading newspapers he had formed an opinion upon the issue whether the shooting was reasonable or justifiable; that this opinion still obtained in his mind so that it would require very strong evidence to overcome it; that he had no prejudice; that as a juror he would be guided by the law and evidence. The respondent excepted to the order of the court excusing the juror.

In this state an objection to a juror on the ground of preconceived opinion is a challenge to the favor. Whether he is indifferent is a question of fact for the trial court State v. Pike, 49 N. H. 399, 406, 407, 6 Am. Rep. 533; State v. Jones, 50 N. H. 369, 381, 9 Am. Rep. 242; State v. Sawtelle, 66 N. H. 488, 528, 32 Atl. 831; State v. Perkins, 70 N. H. 330, 331, 47 Atl. 268; State v. Comery, 78 N. H. 6, 12, 95 Atl. 670. Respondent's exception can, then, be sustained only if the exclusion was manifestly against law and evidence. State v. Pike, State v. Sawtelle, and State v. Comery, supra. It cannot be said as a matter of law that a juror who entertained an opinion upon the merits of the case which could be overcome only by "very strong evidence" was "as impartial as the lot of humanity will admit." Const. pt 1, arts. 21, 35. In the light of the manner and appearance of the witness his admission may well have outweighed his professions of impartiality and want of prejudice. March v. Railroad, 19 N. H. 372, 375, 376; State v. Sawtelle, supra, 66 N. H. 528, 32 Atl. 831. To justify his exclusion it was not necessary that his answers should demonstrate beyond doubt a mental state of partiality. State v. Comery, supra, 78 N. H. 12, 95 Atl. 670.

The evidence introduced by the state tended to show that on the night of the homicide the respondent, wearing an army overcoat, attended a dance given by the American Legion in the state armory on Pleasant street in Manchester; that during the evening he was put out of the armory on account of his intoxicated condition by Police Officer Scannell, who was detailed for duty at the armory. Later in the evening he was seen loitering around the place with a revolver in his possession, and threatening to get the police officer. One Manning heard the threats, and knew respondent had a gun, and went into the armory and informed the officer that respondent had threatened to get him; then he came out, and with deceased started in pursuit of respondent, who, after firing a shot, ran away. They found respondent hiding on the steps back of the city hall. As they started towards him, he started in their direction with the revolver in his hand, and fired another shot. Proulx and Manning then grappled with him, and a third shot was fired, resulting in the death of Proulx. Respondent was carrying the revolver in violation of law.

Officer Scannell, a state witness, was permitted to testify upon redirect examination that after the respondent left the armory Manning told him that the respondent "had a gun," and was "going to get" the witness. This was objected to as hearsay. The evidence appears to have been offered by the state's counsel upon the theory that the officer's knowledge of the facts was material, for which purpose it would have been, competent. Whether or not his knowledge was material is not disclosed by the evidence or facts reported. If immaterial, the objectionable statement would at most seem to constitute harmless error, since Manning had already testified without objection that he reported to the officer that respondent had threatened to "get him." Scannell's testimony that he heard what Manning said added nothing prejudicial to respondent. The respondent subsequently testified upon direct examination in great detail as to his possession and handling of the gun. An objection to hearsay is waived if the objecting party introduces evidence establishing the same fact. Fuller v. Railroad, 78 N. H. 366, 370, 100 Atl. 546; Rowell v. Railroad, 58 N. H. 514, 515; Foye v. Leighton, 24 N. H. 29, 37, 38; Wiggin v. Damrell, 4 N. H. 69, 74.

The testimony of the witness objected to was admitted by the court on the ground that respondent's counsel had cross-examined the officer at considerable length as to why he did certain things which in the opinion of the court rendered what he heard and saw competent. Without a transcript of the previous testimony of the officer, it cannot be presumed that this ruling of the court was error.

Counsel for respondent in cross-examination asked a state's witness, "Do you know that Manning has a police record?" Subject to respondent's exception, the question was excluded upon the ground that it was not a proper time to go into the matter, as Manning had not then testified. The order in which evidence should be received at a trial lies in the sound discretion of the trial justice. Kent v. Tyson, 20 N. H. 121, 124, 125; Soucier v. Company, 77 N. H. 118, 88 Atl. 708. See Holman v. Manning, 65 N. H. 228, 229, 19 Atl. 1002. No error in the exercise of this discretion appears.

Sections 6 and 7, c. 185, Laws 1917, declare that it shall be unlawful for a person not a citizen of the United States, and who has not declared his intention of becoming a citizen, to have firearms in his possession. Under this statute the respondent was unlawfully in possession of the gun which produced the death of Proulx. The respondent excepted to such parts of the charge as treated such unlawful possession as competent evidence in fixing the degree of manslaughter under P. S. c. 278, § 7, on the ground that chapter 185, Laws 1917, is unconstitutional, in that it discriminates against a resident noncitizen contrary to the letter and spirit of the Constitution of the United States. This exception, with others, was not filed for some months after the trial. All exceptions to the charge are usually waived unless taken and reduced to writing before the jury retires. Rule 52; Moore v. Ross, 11 N. H. 547, 557; State v. Rye, 35 N. H. 368, 381; Jackson v. Barron, 37 N. H. 494, 497; Boyce v. Railroad, 43 N. H. 627, 628; State v. Gorham, 55 N. H. 152, 169; Bank v. Ferguson, 58 N. H. 403, 404; Dow v. Merrill, 65 N. H. 107, 110, 111, 18 Atl. 317; Pitman v. Mauran, 69 N. H. 230, 231, 40 Atl. 392; Nadeau v. Sawyer, 73 N. H. 70, 72, 59 Atl. 369; Moynihan v. Brennan, 77 N. H. 273, 274, 90 Atl. 964; Hill v. Carr, 78 N. H. 458, 462, 101 Atl. 525; Alden Speares Son's Co. v. Railroad, 80 N. H. ——, 116 Atl. 343. But the constitutionality of a statute authorizing a prosecution involving the punishment for crime may be questioned at any stage of the proceedings. Commonwealth v. Hana, 195 Mass. 262, 81 N. E. 149, 150, 11 L. R. A. (N. S.) 799, 122 Am. St. Rep. 251, 11 Ann. Cas. 514. The respondent's exceptions of this character will therefore be considered.

The protection afforded by the Fourteenth Amendment of the federal Constitution, forbidding any state to "deprive any person of life, liberty, or property without due process of law," or to "deny, to any person within its jurisdiction the equal protection of the laws," extends to all persons within the territorial jurisdiction, without regard to any difference of race, of color, or of nationality, "and the equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 Sup. Ct. 1064, 1070, 30 L. Ed. 220, 226; Commonwealth v. Hana, 195 Mass. 262, 81 N. E. 149, 150, 11 L. R. A. (N. S.) 799, 122 Am. St. Rep. 251, 11 Ann. Cas. 514; Pearson v. Portland, 69 Me. 278, 281, 31 Am. Rep. 276.

But this clause was not designed to interfere with the exercise of the police power of the states for the protection of the lives, liberty, and property of its citizens or for the promotion of the public safety, peace, and order. State v. Stevens, 78 N. H. 268, 272, 273, 99 Atl. 723, L. R. A. 1917C, 528; Giozza v. Tiernan, 148 U. S. 657, 662, 13 Sup. Ct. 721, 37 L. Ed. 599, 601; Barbier v. Connolly, 113 U. S. 27, 31, 5 Sup. Ct, 357, 28 L. Ed. 923, 925; Ex parte Kemmler, 136 U. S. 436, 449, 10 Sup. Ct. 930, 34 L. Ed. 519, 524; Mugler v. State of Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, 211.

The Fourteenth Amendment did not abridge the right of protection inherent in the states and reserved when the Constitution was adopted. State v. Stevens (N. H.) supra; Commonwealth v. Hana, 195 Mass. 262, 81 N. E. 149, 151, supra; Trageser v. Gray, 73 Md. 250, 20 Atl. 905, 9 L. R. A. 780, 25 Am. St. Rep. 587. In the last-named case it is said:

"Public morals, public health, public order, peace and tranquility are objects of cardinal importance to the well being of society."

In Mugler v. State of Kansas, supra, it was said:

"It cannot be supposed that the states intended, by adopting that amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community."

For these purposes the Legislatures have a wide field of discretion in classification of subjects of legislation. Lindsley v. Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, 377, Ann. Cas. 1912C, 160. A statute is not...