State v. Sawtelle

• Decision Date: 31 July 1891
• Citation: State v. Sawtelle, 66 N.H. 488, 32 A. 831 (N.H. 1891)
• Parties: STATE v. SAWTELLE.
• Court: New Hampshire Supreme Court

32 A. 831

66 N.H. 488

STATE

v. SAWTELLE.

Supreme Court of New Hampshire. Strafford.

July 31, 1891.

Exceptions from Strafford county.

Isaac B. Sawtelle was convicted of the murder of his brother, Hiram F. Sawtelle, committed at Rochester, February 5, 1890, and excepts. Exceptions overruled.

Kimball, a witness called by the state, testified that he was station agent at Rochester, and manager of the Western Union Telegraph Company, and produced a printed copy of the following rule of the company: "Whenever a manager or other employe is subpoenaed on the part of the sender or addressee of a message to produce it before a court or other legal tribunal, he will comply with the subpoena, and afterward return the message to the files; but whenever a manager or other employe is subpoenaed on the part of any person other than the sender or addressee to produce a message, or testify in relation thereto before a court or other legal tribunal, he will take the message into court, and then submit to the judge that he ought not to produce it or testify in relation thereto, and that he cannot do so unless a rule or order of the court be entered requiring it, for the reason that telegraphic messages are of a confidential nature, and that the communication is claimed to be privileged. If such order be made and entered, it will be obeyed, and the clerk of the court will then be requested to furnish a copy of the order, which, together with the subpoena, will be filed with the message to which it relates." Being requested by the state's counsel to produce a telegram sent by the defendant February 4, 1890, from Rochester to Hiram, at Boston, and another sent by the defendant February 5th, from Rochester to Hiram's wife, Jeannette, at Boston, the witness made the objection prescribed by the above rule. The court made the order mentioned in the rule, and the defendant excepted. The witness produced the following original telegrams, called "No. 1" and "No. 3": No. 1: "Rochester, 4, '90. To H. F. Sawtelle, 1275 Washington Street, Boston, Mass.: Marion very sick abed. Grippe. Feverish and growing worse. Mother says come. Will meet you at depot. Answer. Isaac." No. 3: "Rochester, 5, '90. To Jenet Sawtelle, 1275 Washington Street, Boston, Mass.: Somewhat better. Take next train. Will meet you depot, Rochester, N. H. Isaac." Home, a messenger in the telegraph office in Rochester, testified that on the 4th of February, 1890, he saw the defendant write telegram No. 1 in the Rochester station, and give it to the telegraph operator; and Wilcox, the operator, testified that he sent it the same day. Horne also testified that the next day the defendant wrote No. 3, and Horne gave it to the operator; and the operator testified that he sent it. Subject to the defendant's exception, No. 1 and No. 3 were admitted in evidence. Jeannette testified that in the evening of February 4, 1890, "we" (apparently meaning her husband and herself) received No. 1 in Boston. A copy of a message, called "Telegram No. 2," being shown to Wilcox, he testified that it came to him over the wire. No. 2: "Boston, Mass., 2, 4, '90. Isaac Sawtelle, Rochester, N. H.: What time and place will you meet me? Is she dangerous? Answer. Jeannette Sawtelle." Jeannette testified that she left No. 2 at the telegraph office in Boston, late in the night of February 4, 1890, to be sent the next morning if she did not then call at the office. The defendant objected to the admission of No. 2, on the ground that there was no evidence that he received it. The court ruled that there was such evidence, and admitted No. 2, and he excepted. Marion Sawtelle, a girl evidently less than 14 years of age (daughter of Hiram and Jeannette), being called as a witness by the state, the defendant objected to her being sworn. In answer to questions by the court, she said: "I am eight' years old. Have been at school,—the Winthrop Street School. Went to school last summer. Understand that, as a witness, I should be bound to tell the truth. If I did not tell the truth, God would punish me." No questions were proposed by counsel, and no other evidence than her answers and appearance was offered on the question of capacity and understanding. The court found that she was competent, and allowed her to be sworn and to testify, and the defendant excepted. February 14, 1890, a headless corpse was found buried in the woods in Lebanon, Me., several miles from Rochester. There was evidence tending to show it to be the body of Hiram. Subject to the defendant's exception, E. Pierce testified that in summer not more than a dozen teams a month passed over the road near the grave, and that there was very little—sometimes not any—travel there in winter. There was evidence tending to show that late in the afternoon of February 5, 1890, the defendant carried Hiram in a buggy from Rochester village, on the road that passes by the Morrill bam, and killed him at or near the barn. Subject to the defendant's exception, W. Dunnell testified that on the 10th day of February, 1890, he saw the tracks of a horse and wagon near the barn; that the tracks went through the bars, slanting, as if coming from the direction of Rochester village, and turned round, near the back side of the barn, towards the bars. Judgment was rendered on a verdict of guilty, and the defendant filed this bill of exceptions, which was allowed. On two other grounds the defendant moved to set aside the verdict. There was no probability that 12 jurors, qualified in other respects, could be found in the county who had not formed an opinion that the defendant was guilty of murder in New Hampshire or Maine. If all who had formed such an opinion were rejected, he could not be tried. The common-law rule and the meaning of the statute were taken to be that in all cases, civil and criminal, each party is entitled to a fair trial; that a man is not disqualified to be a juror by an opinion formed upon hearsay, oral and printed, if he can and will try the case solely upon the evidence, according to his oath, uninfluenced by that opinion or that hearsay; that the trial is not rendered unfair by the opinion or the hearsay, if they will not affect the verdict. In challenges for cause, the defendant was limited to the right of a fair trial without the latitude generally allowed in civil and criminal cases where there is no difficulty in procuring jurors who have not formed an opinion, and have not heard much concerning the case. All jurors returned were informed at the outset that those who tried the case would be sworn to try it according to law and the evidence. Full explanation was given of the duty of deciding exclusively upon legal evidence given by sworn witnesses on the stand, and discarding all hearsay and previous opinion; and during the impanelment the explanation was several times repeated, with due emphasis, in different forms, and with specific applications. A juror who had been examined by the court, and had sworn that he would try the case on the evidence alone, unbiased by his previous opinion, being examined by the defendant's counsel, said the opinion he had formed was so strong that it would require evidence to change it. The court understood his meaning to be that in the exercise of the right of free thought, and aside from a juror's obligations, his opinion would not be changed unless it was shown to be wrong or groundless; and, on being again questioned by the court, he said, if he tried the case as a juror, he should do his duty according to the explanation that had been given of it. The court found him competent, and he and another, who gave similar answers, were impaneled with others who were not asked whether evidence would be required to change their opinions, but who, undoubtedly, would have made similar answers. There was a second count, under Gen. Laws, c. 284, § 3, charging the defendant as accessory before the fact, in New Hampshire, to the murder of Hiram, committed in Maine by some person unknown. The court denied the defendant's motion to require the state to elect on which count the defendant should be tried. The verdict was on the first count.

D. Barnard, Atty. Gen., and J. Kivel, Solicitor, for the State.

J. A. Edgerly, J. H. Worcester, and G. F. Haley, for defendant.

CARPENTER, J. Whether the rule of the telegraph company is a reasonable one, and whether the court might properly have compelled the witness to produce the telegrams without making the order required by the rule, are questions that need not be considered. Hall v. Young, 37 N. H. 134, 142. The method of procuring the telegrams did not concern the defendant. It was immaterial to him whether the witness produced them voluntarily in compliance with a rule of the company, or involuntarily, under an order of court made in defiance of the rule. The telegrams were properly received in evidence. They were sufficiently identified. They were competent for the jury to consider, in connection with other evidence, as tending to show that Hiram was in Rochester February 5th, and why he went there. The defendant's telegram No. 3 was evidence of his receipt of telegram No. 2.

Whether Marion Sawtelle was a competent witness was a question of fact. The finding of the court was made upon competent and sufficient evidence, and is not revisable. Carlton v. Carlton, 40 N. H. 14, 18-20; Day v. Day, 56 N. H. 316; Free v. Buckingham, 59 N. H. 219, 226.

The testimony of Pierce, that the place where Hiram's body was found was in a solitary, unfrequented neighborhood, and of Dunnell, that five days after the homicide he observed horse and wagon tracks at the place where it was committed, was not incompetent. An objection to evidence on the ground of remoteness raises no question of law, but one of fact, to the determination of which at the trial term no exception lies. State v. Boston & M. R. Co., 58 N. H. 410; Morrill v. Town of Warner. 66 N. H. —, 29) Atl. 412.

No error of law was...