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bony tissues indicated that the fracture re the outside pair being the shorter by about sulted from more than one blow. Lafayette, two inches. On the morning after the crime a witness for the state, whose abode was set the defendant was locked up, and his clothout in the witness list as Haverhill, Mass., ing was taken from him. He then wore a was in Laconia when the list was furnished duck jacket, blouse, one pair of overalls, to the defendant. Stetson, a witness for the shoes, stockings, shirt, and hat. An examistate, who had been living for eight days nation disclosed stains of human blood on the at the county farm in Boscawen, and whose | jacket, blouse, and shoes, and also on abode was so set out, testified that his home towel which was found in his possession. was in Concord. The testimony of these The overalls taken from him had been worn witnesses was admitted subject to exception. since October 12th, but underneath another The court found that the list correctly stated pair. The defendant had lost his right arm, their places of abode. The facts relating to and the right-hand pocket of the overalls other exceptions taken to rulings of the court taken from him showed that it had not been and remarks of counsel are stated in the used. When the defendant was ordered to opinion.

remove his clothing, he trembled violently; The state's evidence tended to prove the and, when asked if it was not too cold to following facts: The Cat Hole Road, so go without drawers, he replied that he had called, is a highway running from the Mer worn an extra pair of overalls, but had torn rimack county buildings in Boscawen to them, and had left them at the bathroom High street in the same town. There are door. On the following Sunday a pair of no dwellings on the road. Shortly before overalls were found hidden in a heap of 3 o'clock in the afternoon of October 23, brush in the vicinity of the pasture from 1901, Mrs. Folsom started from her home, which the defendant drove cows at a point located on High street in Boscawen, to drive 1,873 feet from the Cat Hole Road and 2,with a horse and buggy to North Boscawen, 751 feet from the place of the crime. These by way of the Cat Hole Road. About 15 had a rent in the leg near the crotch, as minutes past 4 she was found lying beside had also the outside pair worn by the dethe road in an unconscious condition, her fendant a day or two before the crime. They skull having been beaten in by three or more appeared to have been somewhat soiled by blows with some blunt instrument. She died wear, and were spattered with blood. The from these injuries in the evening of the right-hand pocket had not been used. The same day. An examination showed that overalls taken from the defendant on the there had been no rape, nor was the under morning after the crime measured 314, inchclothing upon the body torn or disarranged. es in the leg, and had a total length of 52 The place of the crime was distant 5,271 feet inches; the pair found measured 30 inches from the county buildings. It was Mrs. Fol. in the leg, and had a total length of 4912 som's custom to drive over the Cat Hole inches. Footprints made on the day of the Road at about the same time each day, to crime by a person wearing shoes like those meet her daughter, who usually came from of the defendant were found going in both Concord by an afternoon train. This was directions over the Cat Hole Road from a known to the defendant, who was a convict point near the place of the crime towards at the county farm. He had frequently been the county buildings. On the morning after in the vicinity where the crime was com the crime the defendant said that on the mitted, was there the day before, and on day before he went on the Cat Hole Road more than one occasion had spoken to Mrs. only as far as a reservoir, visible from the Folsom. About 10 days before the crime he county buildings. He afterwards stated that said to a witness that he would like to have he might have been as far as some chestnut sexual intercourse with Mrs. Folsom, and re trees, which were well over a hill toward peated the remark the following day, adding the scene of the crime. that he “stood pretty well” with her. He told another witness that he had a "chewing

Edwin G. Eastman, Atty. Gen., and David

F. Dudley, for the State. Nathaniel E. Marmatch” with Mrs. Folsom, and two or three days before the crime he said to a third

tin and Charles F. Flanders, for defendant. witness that he would bave sexual intercourse with her, dead or alive. The day of REMICK, J. 1. The exceptions relating the crime was the first on which Mrs. Fol to the sufficiency of the witness list and to som had driven over the Cat Hole Road alone, the time of furnishing the same are overwhen there were no persons in the vicinity, ruled, for reasons well expressed in Lord v. after these remarks were made by the de State. 18 N. H. 173, 176. fendant. About half past 2 o'clock in the 2. The statement of the solicitor in openafternoon of October 23, 1901, the defendant ing, to which exception has been taken, does was seen to leave the county buildings and not, upon any fair construction, involve a go toward the place of the crime. He was declaration that the respondent was person. not seen again until about half past 4 o'clock, ally bound to become a witness, and answer when he came from that direction behind the state's evidence, or stand convicted; but the cows. Prior to that time he had worn means only that the facts proposed to be two pairs of parti-colored prison overalls, shown, unless in some way met in defense,

would constitute indubitable proof of guilt. and Stetson were stated in the witness list If the language used might, unexplained, in accordance with the fact. The exceptions be understood in the objectionable sense, based upon the ground that they were not such misunderstanding was made impossible correctly stated are therefore overruled. by the immediate instruction of the court. 8. "At the close of the evidence for the

3. The force of the blow on the side of state, the state claiming that the evidence the head, in comparison with the other blows, proved murder in the first degree, and not in and the number of blows necessary to cause any other degree of murder or manslaughter, the cuts on the top of the head, in the absence the defendant moved that he be discharged, of direct evidence, could only be determined upon the ground that there was not sufficient by the appearance of the wounds, viewed evidence to be submitted to the jury to justiwith a knowledge of the structure of the skull fy their finding him guilty of murder in the and its capacity for resistance at the points first degree. The court denied the motion, of impact. As the significance of the wounds and the defendant excepted." In this conmight not be as apparent to a juryman as nection it is contended by the respondent that to one having technical training and profes the amendment of section 7, c. 282, of the sional experience in such matters, we think General Laws, by inserting the words "with the evidence of Dr. Beaton was competent. a design to effect death” (Com’rs Rep. Pub. State v. Knight, 43 Me. 11, 130; State v. Pike, St. c. 277, § 7; Pub. St. c. 278, § 7), as de65 Me. 111; Commonwealth v. Piper, 120 scriptive of one kind of manslaughter in the Mass. 185; Colt v. People, 1 Parker, Cr. R. first degree, has made a higher measure of 611, 620; Gardiner v. People, 6 Parker, Cr. proof necessary to establish murder, unless R. 155; People v. Schmidt, 168 N. Y. 568, distinction between that crime and man569, 578, 61 N. E. 907; Davis v. State, 38 slaughter is to be obliterated. The fallacy Md. 15, 37; State v. Clark, 34 N. C. 151; of this contention is in the assumption unState v. Morphy, 33 Iowa, 270, 272, 11 Am. derlying it that the words “with a design to Rep. 122; State v. Porter, 34 Iowa, 131. effect death” necessarily imply murder, and

4. The objection to each witness for the are inconsistent with manslaughter, as those government as offered, upon the ground of crimes were known at common law. At the insufficiency of the list, like the ob common law, killing with design might be jection to the list itself, is overruled, and up either murder or manslaughter. Malice was on the same authority and for the same rea the distinguishing element. Without malice, sons.

killing with design was only manslaughter, 5. It was a vital question in the case as killing in passion under provocation, whether certain fractures of the top of Mrs. With malice, killing with design was murder, Folsom's skull were caused by blows in as killing in obedience to "the dictate of a flicted by the respondent, or by contact with, wicked, depraved, and malignant heart.” a stone in the ground while accidentally State v. Pike, 49 N. H. 399, 404, 6 Am. Rep. falling from her carriage. The state claimed 533. This court has said: “It is not true that, if the impact had been the result of a that manslaughter is necessarily killing withfall, as contended by the respondent, it out a design to effect death. Some cases of would not have crushed the skull at the top manslaughter are of this kind. But there in the way it appeared; that the thickness are other cases where, notwithstanding the of the skull at that point would have pro intention clearly was to take life, the offense tected it; and that the fracture would have is reduced to manslaughter by circumstances been at the base of the skull, where it is of great and sudden 'provocation, or the comparatively thin. In this view, we think, like.” State v. Butman, 42 N. H. 490, 492. it was competent for the state's medical ex The authorities “clearly show that the crime pert to illustrate by means of a candle inside of manslaughter may be intentionally comthe skull the relative thickness of its dif mitted," and independently of statute. State ferent parts, and to testify: “From my ex v. Calligan, 17 N. H. 253, 255; Rex v. Taylor, perience and observation of many cases in 5 Burrow, 2793; State v. McDonnell, 32 Vt. hospitals, I have learned that when a body | 491, 492; Gann v. State, 30 Ga. 67; Hornsby falls from a height, and strikes on the head, v. State, 94 Ala. 55, 10 South. 522; Dennison the most usual place of fracture is at the V. State, 13 Ind. 510; Maher v. People, 10 base of the skull.” See authorities collected Mich. 212, 81 Am. Dec. 781; Nye v. People, under division 3.

35 Micb. 16; People v. Freel, 48 Cal. 436; 4 6. The remark of the solicitor, after one BI. Com. 436; 1 Whart. Cr. L. $ 304; 2 Bish. of his questions had been objected to and Cr. L. (7th Ed.) § 676; 21 Am. & Eng. Enc. ruled out, "I think the witness has made Law, 172. As the statute stood before the that sufficiently clear," if open to objection amendment in question, manslaughter “with at all, “belongs at most to that class of ir design," of the character illustrated by the regularities not so inconsistent with legal foregoing cases, if provided for at all, was fairness as to require the granting of a new included in the classification of manslaughter trial.” Guertin v. Hudson, 71 N. H. 505, in the second degree, and punished less 53 Atl. 736; Gilman v. Laconia, 71 N. H. severely than manslaughter without design, 212, 51 At], 631.

under circumstances otherwise the same. 7. It is found that the abodes of Lafayette To correct this aiisurdity, not to change the

common-law distinction between murder and Cr. L. 380), yet we think it is quite evident manslaughter, or the rules of proof relating from the kinds of murder which the statute to the same, was the evident and only pur- specifically designates as deliberate and prepose of the amendment. It may be said now meditated-namely, murder by poison, starvas truly as before the amendment that sec ing, and torture-followed as those terms are tions 1 and 7, c. 278, of the Public Statutes, by the words “or other deliberate and preand associated sections, make nothing murder meditated killing,” that the legislature used which was not murder at common law, and the words “deliberate and premeditated” in nothing manslaughter which was not man no narrow or technical, but in their natural slaughter at common law, but merely divide and ordinary, sense, and intending to exclude each into two degrees, and provide punish- | from the operation of the death penalty murment variable according to the degree. der committed on the impulse of the moment, State v. Pike, 49 N. H. 399, 403, 6 Am. Rep. without actual deliberation and premedita533; State v. Almy, 67 N. H. 274, 275, 28 tion, unless committed in perpetrating arson, Atl. 372, 22 L. R. A. 744; State v. Carr, 53 Vt. rape, robbery, and burglary. They were 37, 45; State v. Dowd, 19 Conn. 388, 392; "meant to distinguish between an act done Nye v. People, 35 Mich. 16, 17, 19; 1 Whart. with murderous intent, with a purpose of Cr. L. 8 377. In dividing murder into de mind to kill, and an act done upon sudden grees, our legislature has provided: "All impulse, without meditation or murderous inmurder committed by poison, starving, tor tent." State v. Carr, 53 Vt. 37, 47. “It was ture, or other deliberate and premeditated kill. rightly considered that what is done against ing, or committed in perpetrating or attempt life deliberately, indicates a much more deing to perpetrate arson, rape, robbery, or praved character and purpose than what is burglary, is murder of the first degree; and done hastily, or without contrivance. But it all murder not of the first degree is of the is a perversion of terms to apply the term second degree." Pub. St. c. 278, § 1. The deliberate to any act which is done on a distinction between the degrees thus created sudden impulse.” Nye v. People, 35 Mich. lies not in the presence or absence of malice, 16, 17, 19. “There must be not only an inas in case of murder and manslaughter, for tention to kill, but there must also be a demalice is indispensable to both degrees, but liberate and premeditated design to kill. Such it depends upon whether the killing is with design must precede the killing by some apdeliberation and premeditation or otherwise, preciable space of time. But the time need excepting murder accomplished in perpetrat- | not be long. It must be sufficient for some ing or attempting to perpetrate arson, rape, reflection and consideration upon the matter, robbery, or burglary; and that is made mur for choice to kill or not to kill, and for the der in the first degree regardless of intent to formation of a definite purpose to kill. And kill because of the peculiarly vicious character when the time is sufficient for this it matof the collateral offenses. It follows that, to ters not how brief it is. The human mind warrant conviction of murder in the first acts with celerity which it is sometimes imdegree, the state must show beyond a rea possible to measure; and whether a delibsonable doubt not only killing with malice, erate and premeditated design to kill was but must go further, and show that the kill formed must be determined from all the ciring was deliberate and premeditated, unless cumstances of the case.” People v. Majone, done in perpetrating or attempting to perpe 91 N. Y. 211, 212. "The questions for the trate one of the collateral felonies named in jury are: Had the slayer space and opporthe statute. State v. Pike, 49 N. H. 399, 6 tunity for reflection? Did he think over what Am. Rep. 533; Buel v. People, 78 N. Y. 492, he was about to do? Did he coolly form a 499, 34 Am. Rep. 555; People v. Schmidt, 168 settled purpose? Was his mind sedately and N. Y. 568, 574, 575, 576, 61 N. E. 907; Nye v. considerately made up to take life? If these People, 35 Mich. 16, 17, 19; 21 Am. & Eng. i questions be answered in the affirmative, the Enc. Law, 145, 167. Malice is not an infer verdict must be murder in the first degree. ence of law from the act of killing, but, like If not, and yet the killing was done purany other fact in issue, it must be found by posely and maliciously, it must be murder in the jury upon competent evidence. See Re the second degree,”—unless committed in perview of Trial of Prof. Webster, by Joel petrating or attempting to perpetrate arson, Parker, 72 North Amer. Rev. 178; 2 Cool. rape, robbery, or burglary. Walk. Am. Law Black. (30 Ed.) 395, note; Whart. Cr. Ev. (9th (7th Ed.) 538, 539. The contention that, even Ed.) § 738; 2 Bish. Cr. L. (7th Ed.) § 673; 21 if the respondent murdered Mrs. Folsom in Am. & Eng. Enc. Law, 139. In this view, the attempting to commit rape, it was not an atargument of the respondent's counsel, based tempt within the meaning of the statute, beupon the doctrine of implied malice, would cause not far enough advanced toward conseem to be irrelevant.

summation, is contrary to reason and authorAs to the element of deliberation and pre ity. Lewis v. State, 35 Ala. 380, 388; Taylor meditation, while it need not be shown that v. State, 30 Ga. 79; 1 Bish. Cr. L. (7th E{l.) the killing was deliberated and premeditated § 733. That the respondent actually attemptfor any particular length of time (State v. ed rape, and killed Mrs. Folsom as a means Carr, 53 Vt. 37, 46, 47; Walk. Am, Law, 538, or outcome of such attempt, were, however, 339; 2 Bish. New Cr. L. S 723; 1 Whart. facts which the state was bound to establish

beyond a reasonable doubt to warrant con of a new trial.” Guertin v. Hudson, 71 N. H. viction of murder in the first degree upon that 503, 53 Atl. 736. ground. Kelly V. Commonwealth, 1 Grant, 10. Prof. Wood and Prof. Angell having Cas. 434; Pliemling v. State, 46 Wis. 516, 1 testified for the state and defense, respectiveY. W. 278. The state was also bound to es ly, drawing opposite conclusions, we think it tablish beyond a reasonable doubt the malice was competent for the state in the cross-exand deliberation essential to convict in the amination of Angell to ask him if he had first degree upon the other ground. In short, known of Prof. Wood some time, and if the “no man should be deprived of his life un latter was regarded as an eminent authority der the forms of law unless the jurors who in these matters; not for the purpose of showtry him are able, upon their consciences, to | ing as affirmative evidence the ability and say that the evidence before them, by whom standing of Prof. Wood, but merely by way soever adduced, is sufficient to show beyond of cross-examination, for the purpose of disa reasonable doubt the existence of every fact crediting and weakening his testimony before necessary to constitute the crime charged." | the jury upon the points at issue between him Daris v. United States, 160 U. S. 469, 16 Sup. and Prof. Wood. Ct. 353, 40 L. Ed. 499. But while malice and 11. The remark of the state's counsel in deliberation, when essential to murder in the the course of his closing argument to the jury, first degree, like the attempt to perpetrate "Why, it seems that for some reason or other, rape, when that is relied upon to bring kill when this affair in regard to Mrs. Folsom ing within the capital classification, must be came out, everybody went down there to see established beyond a reasonable doubt, direct about Greenleaf,” was calculated to convey evidence is not necessary for this purpose. to the jury the idea that Greenleaf was such The character of the weapon employed, the a character that all eyes immediately turned force and number of blows inflicted, the lo toward him as the perpetrator of the crime. cation and severity of the wounds, the place That it was improper and prejudicial does of the crime, previous remarks and conduct not admit of doubt. When objected to, it indicating preparation, subsequent acts and was not retracted, but persisted in. The statements, and every circumstance having court did not order it stricken out, nor is it a legitimate bearing upon the subject, may found that it did not prejudice the jury. Verbe considered by the jury. People v. Schmidt, dicts in civil cases without number have been 168 N. Y. 568, 61 N. E. 907; Whart. Or. Ev. set aside because of remarks of counsel no (9th Ed.) 8 738; 1 Whart. Cr. L. § 381; 21 more prejudicial. Hilliard v. Beattie, 59 N. Am. & Eng. Enc. Law, 161. The evidence H. 462; Perkins v. Burley, 64 N. H. 524, 15 in the present case is too voluminous to re Atl. 21; Jordon v. Wallace, 67 N. H. 175, produce or satisfactorily epitomize. Suffice it 32 Atl. 174; Heald v. Railroad, 68 N. H. 49, to say, we have examined it in its length and 44 Atl. 77; Greenfield v. Kennett, 69 N. H. breadth, and applied to it the legal tests al 419, 45 Atl. 233. Greenfield v. Kennett, suready indicated. While the evidence is cir pra, was an action in assumpsit for lumber cumstantial, conflicting, and unsatisfactory, sold. The plaintiff's counsel, in his closing and, unaided by the appearance of the wit argument, said that he "should be willing to nesses and other legitimate advantages of try this case before a jury composed of parpresence at the trial and scene of the al ties with whom he [the defendant) had dealt." leged killing, not such as to remove doubt The defendant objecting, the plaintiff withfrom the judicial mind, yet the court are of drew the remark, and asked the jury not to the opinion that it was sufficient to warrant consider it. The court at the time, and again its submission to the jury upon the material in the charge, instructed the jury to disrequestions (1) whether the respondent killed gard it. Nevertheless the verdict was set Mrs. Folsom, (2) whether he did it with mal aside. Manifestly, the remark in that case ice, deliberation, and premeditation, (3) wheth was no more prejudicial than the remark now er he did it in attempting to perpetrate rape. under consideration. Furthermore, in that The motion to discharge was therefore prop case counsel who made the remark withdrew erly denied.

it, and asked the jury not to consider it, and 9. The remark of the attorney general, after the court repeatedly instructed the jury not the defendant's witness Lawson had testified, to regard it; while in the present case the to the effect that his testimony did not con remark was persisted in after objection, and tradict the testimony of the state's witness it does not appear that the jury were inHamilton, as claimed by the defense, but con structed to disregard. Greenfield v. Kennett firmed it; and the remark of the attorney presents no extreme illustration of the princigeneral in connection with the cross-examina ple. In the mass of authorities upon this tion of the defendant's witness Angell, “I subject in this jurisdiction, well collected in don't know about this stump speech business; Story v. Railroad, 70 N. H. 364, 48 Atl. 288, I object to his making a stump speech here may be found other cases quite as much in to display his knowledge,”- stand like the re point. If the opinion anywhere exists that inark of the solicitor covered by exception 6, the rule established in this jurisdiction is too and, if open to objection at all, belong "to strict for the practical administration of justhat class of irregularities not so inconsistent tice, all must nevertheless agree that, such Hith legal fairness as to require the granting | being the rule in the most petty civil case,

69.

it would be absurdly inconsistent, and bring ing the jury in regard to murder in the first both the rule and the court into contempt, to degree, said: “There is no contention on suspend or juggle with it in a case involving the part of the state or the defendant that human life, however dastardly the alleged there is any other offense than that of murcrime, disreputable the accused, or clamor der in the first degree. You are therefore ous the public. “A highly-wrought condition required to either acquit the defendant, or of the public mind, the popular horror and find him guilty of murder in the first de indignation that arise upon the commission gree.” To this instruction the defendant's of a dreadful crime, are not favorable to the counsel assented, and during his closing arcalm and dispassionate application of a just gument he said: “This is an indictment for and humane law. They do not always leave murder in the first degree. The state char. the vision clear. But popular clamor, how ges George H. Greenleaf with the premediever loud, cannot be permitted to invade this tated murder of Mrs. Folsom. They charge place without imperiling the most sacred it in the first degree, and in no other degree. rights of the innocent as well as the guilty. There is no evidence introduced here by the The rule which we apply in the trial of a state, or by any one else, that changes the wretch who has ravished and killed an in issue in that respect.” Some three months nocent girl, and then, with the incarnate after the trial the defendant asked for an spirit of a fiend, torn and cut and mutilated exception to the part of the charge above her body in a way that causes the blood to quoted. His request was not granted. His curdle and the heart to rise in almost un position now is that fundamental error was controllable rage, is the same rule which we committed, because the question of the demust apply to the trial of the innocent vic. gree of the crime, if murder, was not left tim of a wicked and audacious conspiracy, to the jury, but was determined by the court; or of one who, without fault, has become en and he calls attention to section 2, c. 278, tangled in a mesh of circumstances which of the Public Statutes, which provides, “If threaten an innocent life.” Ladd, J., in State the jury shall find a person guilty of murv. Lapage, 57 N. H. 245, 301, 24 Am. Rep. der, they shall, by their verdict, find also

whether it is of the first or second degree.12. The remark of counsel for the pros If it is assumed, without deciding the point, ecution in closing argument, “This statement that the respondent is entitled to the benefit was taken right off the very next day after of his exception taken long after the trial, the affair happened,” referring to a portion it is not necessary to determine at this time of the testimony of the government's witness the question raised thereby. Whether the Graney, was manifestly intended to per charge of the court was erroneous, as now suade the jury that his testimony was true claimed by the respondent, and, if it was, because he had stated the same thing in the whether he did not effectually waive his same way immediately after the alleged right to take advantage of it by assenting crime. There was no evidence that Graney thereto at the trial, or whether it was comhad ever given a statement prior to testifying petent for him to bind himself by such ason the stand, and there was nothing in the sent, are questions of so much difficulty that record from which such an inference could it is not deemed advisable to express an opinbe legitimately drawn. As the assertion was ion upon them. As there must be a new trial wholly unsupported by evidence, and calcu for other reasons, it would not be useful to lated to prejudice the respondent by secur determine these questions, in anticipation ing for vital statements of the witness a that they will again be presented upon the higher degree of credit than otherwise, and next trial. the evil not having been remedied as the law Exceptions sustained. Verdict set aside. requires (Story V. Railroad, 70 N. H. 364, All concurred 376, 48 Atl. 288), but aggravated by persistence, it stands upon the record as reversible

(24 R. I. 561) error, under the rulings of this court fully

McELROY v. CAPRON. collected in Story v. Railroad, 70 N. H. 364, 372–376, 386, 387, 48 Atl. 288. The point

(Supreme Court of Rhode Island, Dec. 29,

1902.) that the exception was too general, if ever

HUSBAND AND WIFE-TORT OF WIFE-PRESentitled to consideration in a capital case,

ENCE OF HUSBAND--INDIVIDUAL LIABILITY where the exception involves a question of OF WIFE-SUFFICIENCY OF PLEA. fair trial, has little weight in the present

1. Gen. Laws, c. 194, $ 14, provides that the

luusband shall not be liable for antenuptial torts instance, the purpose and application of the

of his wife, nor for any contract of hers made exception being obvious and unmistakable

after marriage, uor for torts of the wife after from the connection in which it was made. marriage "unless he participates therein or co13. In view of the conclusions reached re

erces her thereto." Held, in view of the inten

tion of the statute to limit the common-law liaspecting the argument of the state's counsel

bility of the husband for acts of his wife, that in the particulars covered by the two preced a wife's plea to an action seeking to charge ing heads, we will not consider the argu her with individual liability for a tort, that her ment in other particulars claimed by the de

husband was present and participated, was in.

sufficient, as merely raising a prima facie pre fense to be exceptionable.

sumption of coerciou by him, which was an es14. In the charge the court, after instruct sential ingredient in her defeuse.

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