State v. Yosua

• Decision Date: 05 November 1940
• Citation: 16 A.2d 370
• Parties: STATE v. YOSUA.
• Court: New Hampshire Supreme Court

16 A.2d 370

STATE

v. YOSUA.

Supreme Court of New Hampshire. Rockingham.

Nov. 5, 1940.

Transferred from Superior Court, Rockingham County; Connor, Judge.

Michael Yosua was convicted for recklessly driving an automobile resulting in the death of a third party.Case transferred on defendant's bill of exceptions.

New trial.

Indictment, under P.L. c. 102, § 11, as amended byLaws of 1931, c. 81, for reckless driving of an automobile resulting in the death of Gladys Shea on Christmas night, 1938.Trial by jury with verdict of guilty.The defendant excepted to a ruling upon the opening statement of his counsel, to the exclusion of certain comment by the latter in final argument, and to the allowance of arguments by the County Solicitor.Transferred by Connor, J, on the defendant's bill of exceptions.The facts appear in the opinion.

Stephen M. Wheeler, Co. Sol, of Exeter, Thomas.P. Cheney, Atty. Gen, and Frank R. Kenison, Asst. Atty. Gen, for the State.

William H. Sleeper, of Exeter, for defendant.

PAGE, Justice.

I.In the course of his opening statement, counsel for the defendant asserted that the crime charged could not be established unless it appeared that there was "such heedlessness and such a degree of carelessness that it amounts to a conscious disregard for the consequences and you twelve men in your experience in life know pretty well what the law seeks to do in felonies, serious crimes.It seeks to punish the wicked or the guilty mind * * *."The County Solicitor interrupted at this point with the objection "you haven't got to have intent or any mind of guilt."With this Mr. Sleeper took issue.The court suggested that counsel omit reference to the law and permit the court to define it at the proper time.Mr. Sleeper showed unwillingness to comply, and after further colloquy the court ruled that "a certain consciousness of improper action" by the defendant was unnecessary to conviction.To this ruling the defendant excepted.

The trial justice correctly ruled that the "guilty mind" in the sense of active intent was not required.State v. Cornish, 86 N.H. 329, 21 A. 180, 18 L.R.A. 191;State v. Ryan, 70 N.H. 196, 46 A. 49, 85 Am.St.Rep. 629;State v. Gilbert, 89 N.H. 134, 194 A. 728.Moreover, the defendant did not object when final instructions to similar effect were given, including the words: "It [recklessness] means heedlessness, rashness, indifference to consequences, it means negligence that is blameworthy or carelessness that has in it an element of conscious indifference as to the consequences of such conduct."While we do not have to pass upon the correctness of this definition, the defendant's acceptance of the charge leaves him with no cause to complain.Abbott v. Ladd, 85 N.H. 541, 542, 161 A. 373.

II.Upon cross-examination, one of the State's witnesses was faced with a statement which she admitted having signed, but whose correctness she did not admit in every particular.Certain portions of the statement were read to her with the purpose of contradicting her direct testimony.Other portions were not read to her.The statement as a whole was not offered in evidence, nor was it even marked for identification.

In the course of final argument the defendant's counsel attempted to read and comment upon a portion of the statement that had not been offered in evidence.The trial justice excluded comment, subject to the defendant's exception.It is clear from the extended colloquy that everybody, including Mr. Sleeper, understood that the exclusion related only to passages in the statement not in evidence.There is no room for the assumption suggested in the defendant's brief that the court"excluded reference to the statement."Such portions of the statement as were in evidence were left open for proper...