State v. White

• Decision Date: 20 December 1963
• Citation: 105 N.H. 159,196 A.2d 33
• Parties: STATE v. Charles WHITE.
• Court: New Hampshire Supreme Court

Page 33

196 A.2d 33

105 N.H. 159

STATE v. Charles WHITE.

Supreme Court of New Hampshire.

Argued Oct. 1, 1963.

Decided Dec. 3, 1963.

Rehearings Denied Dec. 20, 1963.

William Maynard, Atty. Gen., and William J. O'Neil, Asst. Atty. Gen., for the State.

William D. Tribble and David J. KillKelley, Jaffrey, for defendant.

Charles White (by brief), pro se.

BLANDIN, Justice.

The state charges in substance that the defendant Charles White and another man named Moffitt offered to take the complainant, Mrs. Janet Allen in the defendant's car, from the main street in Hinsdale to her home nearby; that instead of so doing, the defendant drove her away in his car despite her protests, beat her, took her off on a lonely discontinued dirt road outside the main part of the town and there robbed her, beat her again, and went away leaving her for dead beside the road.

A preliminary issue is whether the Court erred in excusing a juror for cause. It appears that the juror in question at one time had employed one of the defendant's attorneys, Mr. Tribble, to draw and file a deed for him. In addition, he was a steady client of an associate of Mr. Tribble not engaged in the trial. Upon the State's challenge for cause, the Court excused this juror.

The law here is that the question of whether a juror is impartial is one of fact to be determined by the Trial Court. State v. Sawtelle, 66 N.H. 488, 508, 538, 32 A. 831. See McLaughlin v. Union-Leader Corp., 99 N.H. 492, 499, 116 A.2d 489. Although the Sawtelle decision has been questioned upon other grounds (4 N.H.B.J. 19; 5 N.H.B.J. 204, 212), the principle applicable in this case is firmly established. 4 N.H.B.J. 20. It was also incumbent upon the Presiding Justice to see that a jury as nearly impartial 'as the lot of humanity will admit' was selected. State v. Prevost, 105 N.H. ----, 193 A.2d 22, 24. On the record before us, we see no reason to disturb the Court's exercise of discretion in excusing the juror in question, and the defendant's exception is overruled.

A further question is raised by the defendant as to the admissibility of the sheriff's testimony that he observed what appeared to be blood stains on the defendant's shirt and also on parts of his automobile. The matter of the admissibility of opinion evidence has received such exhaustive consideration in numerous cases here that we see no need for elaborate discussion. Under the liberal rule which has long prevailed, the admissibility of this evidence does not depend upon the nature of the issue upon which the evidence bears, but upon whether or not it will probably aid the jury in its search for truth. Dowling v. L. H. Shattuck, 91 N.H. 234, 236, 17 A.2d 529.

In the present case, the sheriff, a man of many years of service in his office, testified that he had had occasions to observe blood stains in his work and believed that he could recognize them. In this situation, the Court's finding that the witness's experience was such that he possessed more knowledge on the subject than ordinary men and that his opinion would therefore probably aid the jury, appears unassailable. Lynch v. Bissell, 99 N.H. 473, 475, 116 A.2d 121. See also Commonwealth v. Shepard, 313 Mass. 590, 48 N.E.2d 630; 23 C.J.S. Criminal Law § 876c. We believe that our rule is more conducive to a discovery of the truth than more restrictive procedures. While aware of such contrary authority as Gantling v. State, 40 Fla. 237, 23 So. 857, relied upon by the defendant, we do not choose to follow it. The defendant takes nothing by this exception.

Certain photographs, taken two days after the date of the alleged offense and showing the nature and extent of the injuries which the victim received, were admitted over objection by the defendant. There was testimony from a witness present at the taking that they were a fair representation of Mrs. Allen as she then appeared. These pictures were relevant as bearing on the nature and the degree of the crime and the defendant's purpose and mental state, as well as an aid in making clear to the jury oral descriptions of the injuries. State v. Hause, 82 N.H. 133, 135, 130 A. 743. Since they were relevant, their importance was to be weighed by the Presiding Justice as against the likelihood of any prejudicial effect which they might have in determining whether they should have been admitted. State v. Hause, supra, 82 N.H. 136, 130 A. 744-745. The Court found that the photographs were sufficiently identified (State v. Mannion, 82 N.H. 518, 520, 136 A. 358) that they were relevant and not unduly prejudicial. We see no occasion to overturn these conclusions, and the defendant's exceptions to the admissibility of the pictures are overruled. State v. Lavallee, 104 N.H. 443, 189 A.2d 475.

It is urged that it was error to admit evidence of the substance of the defendant's alleged oral confession made as he was being transferred from Vermont to New Hampshire to face trial, some two months after the commission of the crime of which he is accused and about one and a half years before the trial. A preliminary hearing before the Court was held without the jury, after which, upon a finding that the confession was voluntary, the testimony to which the defendant objected was introduced. An examination of the record discloses evidence that prior to the confession the defendant, who was familiar with criminal procedure, had been warned of his rights and that thereafter, of his own free will, without threats, fear, promises or inducements of any sort, he confessed that he robbed and beat Mrs. Allen. While refusing to reaffirm the confession on the stand, the defendant admitted that on the trip during which it is claimed he made the statements, everything he did say was purely voluntary.

In this situation, the preliminary finding of the Court that the confession was voluntary is clearly sustainable. State v. George, 93 N.H. 408, 415-416, 43 A.2d 256. There is no requirement in this state, as suggested by the defendant, that to be admissible an alleged oral confession must be repeated verbatim or that the defendant verify it as correct. We see no sufficient reason to establish such a procedure. On the record before us, no rights of the defendant were violated by the admission of this testimony, and he takes nothing by his exception. State v. Hamson, 104 N.H. 526, 191 A.2d 89.

The defendant further urges that the evidence here was insufficient to sustain a conviction for aggravated assault. Our statute governing this matter (RSA 585:22) merely states that if the assault 'is of an aggravated nature,' the offender shall be fined not more than $500, or imprisoned not more than three years, or both.

The record is barren of testimony that the victim had suffered any noticeable injuries immediately prior to the assault upon her. In regard to this assault, she testified that the defendant held her while his companion Moffitt beat her violently in the face, that the defendant himself struck her in the chest, that he also 'socked me in the eyes with his fists,' that he kicked her after she was thrown to the ground by Moffitt and her clothes torn off, and that the defendant then said, 'We might as well leave her now she is dead.'

The physician who treated her stated in part as follows: 'She was badly battered about the face. There was a compound fracture of the nose, which means that the nose not only was fractured, but the skin was so torn across that you could actually look in to see the fractured fragments of the nose in the upper portion * * * There was blackening of her left eye * * * I think I would say she was semi-conscious * * * She was, of course, breathing hard and blowing blood with each breath. She was bleeding quite severely from the nose and mouth. * * *' The doctor also testified that she was in a state of shock and that it was several days before she got over 'this concussion she had from the blows to her face.' It seems unnecessary to further detail the evidence. We think we need not labor the point that the jury could find that the attack by the defendant upon Mrs. Allen was perpetrated with such extraordinary violence and caused such serious bodily harm that it was an assault of an aggravated nature within the meaning of RSA 585:22. State v. Lavallee, 104 N.H. 443, 189 A.2d 475.

The defendant's argument in support of his claim that the evidence was insufficient to sustain a conviction of petty larceny is based mainly upon his own denial that he committed any robbery and ignores other evidence. Mrs. Allen testified unequivocally that the defendant 'took my wallet' with about nine dollars in it and refused even to give her back some pictures that were in it, because he told her 'there would be finger prints on them.' She said that after this the defendant and Moffitt talked about buying beer with her money and that she has not seen her wallet or her money since. In addition, there was testimony the defendant told the sheriff and the county solicitor that 'he was sorry he robbed her.' This was clearly sufficient to sustain a conviction for petty larceny under RSA 582:5 Supp., and the defendant's exception cannot prevail. Hatfield v. Guay, C.C.A. 1, 87 F.2d 358, 363. See State v. Canatella, 96 N.H. 202, 72 A.2d 507.

The exception to the Trial Court's permitting the State to inquire into a matter on cross examination of one of the defendant's witnesses, upon which the defendant claims the witness had not been interrogated on redirect examination, does not require extended consideration. Superior Court Rule 56 specifically permits such examination by leave of Court for good cause shown. Here the witness had testified on the stand in sharp contradiction to...