State v. Wakefield
| Decision Date | 16 April 1914 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. WAKEFIELD. |
Appeal from Superior Court, New Haven County; Lucien F. Burpee, Judge.
Bessie J. Wakefield was convicted of murder in the first degree, and she appeals. Reversed, and new trial ordered.
The defendant and James Plew were jointly indicted for murder in the first degree, the charge being that they willfully, deliberately, and maliciously killed the defendant's husband, William O. Wakefield, by shooting, stabbing, and strangling him. Plew pleaded guilty to the indictment, and left it to the court to determine the degree of his crime, pursuant to General Statutes, § 1140. Wakefield's body was found in a piece of woods in the town of Cheshire, about 500 feet from the public highway, on June 28, 1913. When found, there were several bullet and stab wounds in the head and body; about the neck there were two shoe laces, which had been tied together, making one string, a slip noose having been formed at one end and placed and drawn tightly about the neck so that it left a deep furrow, the other end being attached to the stump of a tree. A revolver and open pocketknife were found beside the body. There was undisputed testimony tending to prove these facts, and they were not questioned upon the trial. The state claimed to have established that death was primarily due to strangulation from the tightening of the cord around the neck, and secondarily to hemorrhage from the wounds mentioned. The state claimed that its evidence showed that Plew killed Wakefield under circumstances making it murder in the first degree; that there was an agreement between the defendant and Plew that the latter should kill her husband or, if no express agreement, that she knew that Plew had planned to kill him, and abetted, counseled and encouraged him to do it; and claimed to have shown that on the night of June 22d Plew undertook to chloroform Wakefield in his own home, when the defendant was present, with the intention to after ward take the body to the barn and hang it to a beam, so that it might be thought to be a case of suicide; and that, this effort having failed, Plew on the same night persuaded Wakefield on some pretext to leave the house, and led him away to Cheshire, ten miles from his home, and there shot, stabbed, and strangled him to death in the early morning of June 23, 1913. The defendant claimed that she made no arrangement with Plew to kill her husband, and that she did not aid and abet him in the deed, nor procure, counsel, or encourage him to do it.
Thomas F. Devine, of Waterbury, for appellant. Arnon A. Ailing, State's Atty., and Walter M. Pickett, both of New Haven, for the State.
THAYER, J. (after stating the facts as above). The state did not claim that the defendant actually killed her husband, or that she was present aiding and abetting the person who, in fact, killed him. To convict her of the crime charged in the indictment, it was therefore bound to prove that, absent, she caused, abetted, counseled, or commanded its commission. This, at common law, would make her an accessory before the fact, but not a principal in the crime. Under our statute, one so connected with the crime is a principal, and may be prosecuted and punished as such before the real principal has been convicted. The state claimed that Wakefield was killed by Plew, who was jointly indicted with the defendant. He had not been convicted at the time of the trial, and was not then on trial, having pleaded guilty to the homicide, and left it to the court to determine the degree of his guilt The state, therefore, had the burden of proving both that Plew murdered Wakefield, and that the defendant procured, counseled, or encouraged him to do it.
To establish the facts thus in issue, it offered as witness Eli Mix, coroner of New Haven county, to testify to certain statements made to him by the defendant in New Haven on the evening of July 1, 1913, after he had informed her that he was the coroner, and was investigating the death of her husband, and that she could not be compelled to make any statement, but, if she wished to make one, she might do so, and he would take it down. Her counsel objected to this testimony as inadmissible, on the ground that earlier, upon the same day, at Bristol, in Hartford county, she had been examined as a witness by the coroner without being cautioned as to her rights, and because of certain language used by him during that examination, and also because she was then under restraint by the authorities of Bristol. The defendant's counsel was permitted to examine the witness, in the absence of the jury, as to what occurred on the hearing at Bristol, and the circumstances under which the statement was made. From this evidence the court was satisfied that the statement offered in evidence was voluntary, and was not improperly obtained, and overruled the objection. Whether the statement was freely given and fairly obtained was a question of fact for the trial court. State v. Willis, 71 Conn. 293, 313, 41 Atl. 820. There is nothing to show that it was in error in the conclusion which was reached. The statement was not a confession. The objection to it is that it contains facts which, in connection with other facts, tend to prove the main facts in issue. There was no error in admitting the testimony.
The second assignment of error has not been pursued in the brief or oral argument, and calls for no consideration.
The third and fourth are improper assignments. They allege error in the court's failure, under the circumstances disclosed by the evidence, to charge as to the law pertaining to excusable homicide, and to abandonment of the common purpose by a conspirator. The evidence is certified and made part of the record on appeal, but this is not for the purpose of disclosing errors of omission or commission in the charge. If the court failed to charge upon a point where an instruction was requested, or where the circumstances called for one, it was the duty of the appellant's counsel to request a finding showing the circumstances which he claimed called for the instruction, and, if such were the fact, that a request was made for such an instruction, and that it was refused. The court has found, in effect, that no facts were in evidence and no claim made on the trial calling for such instructions as it is now claimed should have been given. Upon this finding, there was no error in failing to instruct upon the subjects mentioned in these assignments of error. If the finding is incorrect, proceedings should have been taken to have it corrected.
The fifth assignment of error is that the court erred in failing to charge that the defendant's guilt must be proved independently of the confession of Plew. There was a request that the court charge that testimony of an accomplice is insufficient to convict, and that the testimony of Plew, even if the jury believed it, was not sufficient to convict the defendant of the crime with which she was charged. This request was not given. It is apparent that the fifth reason of appeal relates to the refusal to charge this request. The notice of the defendant that she desired to review its correctness called from the court a special finding that: "No testimony of Plew was offered by either party, except certain statements made in the defendant's presence, and by her at the time expressly confirmed and admitted to be true, so far as she had knowledge of the matters so stated." It thus appears that the statements of Plew were before the jury, and it does not appear that they were all admitted to be true by the defendant (for it does not appear that she had knowledge of all the matters contained in them), and the fair inference from the finding is that there were some which were not admitted by her. These statements made in her presence, so far as admitted by her either expressly or by conduct, were properly before the jury, if such admissions were inconsistent with her claims upon the trial. But they were not properly before the jury as evidence of the truth of the facts stated therein, but only to show the defendant's inconsistent conduct 2 Wheaton, Criminal Evidence (10th Ed.) § 679; State v. Willis, 71 Conn. 293, 306, 41 Atl. 820. They were not admissible as statements or testimony of Plew. His statements out of court were, as to the defendant, mere hearsay. She was entitled to be confronted in court by the witnesses against her. If any such statements, which were not admitted or assented to by her, were received in evidence, it was the duty of the court to instruct the jury that they were not to consider them as evidence against the defendant; and, in a case involving such serious consequences to the defendant as the present, we think that the jury should have been told also that they were not to treat the statements of Plew in which the defendant, by silence or otherwise, acquiesced as testimony of Plew. Although it does not appear that any claim was made by the state in its offer of the statements or in the argument that they were to be treated as evidence of the facts stated, and presumably no such claim was made, yet, without some instruction as to the purpose for which they were admitted and a caution that the jury were not to consider them as testimony of Plew, the jury would be very likely to so consider them. A conviction of murder in the first degree...
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