Opinion
No. 3058
Decided February 16, 1939
In the trial of an indictment for first degree murder, the plea of not guilty by reason of insanity is in the nature of a plea of confession and avoidance and concedes the commission of the physical act of killing.
Hence on such plea defendant's confession that he committed the physical act is immaterial and the admission of an involuntary confession in evidence is harmless error.
A statement by the respondent in a so-called confession that he accidentally struck the deceased is an exculpatory statement denying guilt and not a confession; and hence the rules governing the introduction and exclusion of confessions are inapplicable.
A finding of the Presiding Justice that a respondent had been sufficiently warned by an officer before making his examination and that a confession was not obtained by threats on the part of the police was based on adequate evidence.
On a motion for a new trial in a capital case on the ground of newly discovered evidence, a finding by the trial court that the evidence could have been obtained before the trial if reasonable diligence had been used is not decisive against the motion; in such cases the strict rules of procedure applicable to ordinary trials yield to broad principles of equity and justice.
Although on a motion for a new trial the questions of fact are usually within the jurisdiction of the trial justice, the Supreme Court determines as a matter of law whether the findings could be reasonably made on the evidence.
In support of such motion the respondent is required to present the best evidence obtainable.
Where on a motion for a new trial no precise information concerning the extent or details of newly discovered evidence can be obtained without the attendance of witnesses, compulsory process therefor should be granted.
It is error for the trial court in such case to deny a motion for such process on the assumption that the allegations of the motion truly state the nature of the evidence and thereupon to find that the testimony at a new trial would not produce a different result.
INDICTMENT, for murder in the first degree. Plea, not guilty by reason of insanity. Trial by jury and verdict of guilty, with capital punishment.
The State's evidence tended to prove that the defendant killed Mark Neville Jensen, a boy about twelve years of age, by beating him over the head with an automobile jack after the boy had resisted an attempted sexual attack on him by the defendant. The crime was committed in Gilford on the evening of September 10, 1937. The defendant had once been confined in the Bridgewater State Hospital at Bridgewater, Massachusetts, as a defective delinquent.
The trial began on December 6, 1937, and was concluded on December 13, 1937. The jury having determined that the punishment should be death (P. L., c. 392, s. 4), the defendant was immediately sentenced to be hanged, the day appointed for his execution being December 30, 1938. See P. L., c. 369, s. 6. On December 27, 1938, defendant's counsel filed a bill of exceptions alleging error on the part of the Presiding Justice in admitting in evidence certain so-called confessions of the defendant. A bill of exceptions filed December 21, 1938, was withdrawn, not being in proper form. The court, having found that the "attempt to transfer the exceptions was not made seasonably," disallowed the second bill. To this ruling the defendant excepted. On December 29, 1938, a reprieve was granted the defendant by the Governor, with the advice of the Council, postponing execution of the sentence until March 1, 1939.
On January 7, 1939, defendant's counsel filed a motion for a new trial, on the ground of newly discovered evidence. The material facts, stated under oath in the motion, may be summarized as follows: On October 29, 1937, the defendant was committed "into the care and custody of the superintendent of the state hospital, to be detained and observed by him" in accordance with the provisions of section 13 of chapter 11 of the Public Laws. During the period of his commitment he was examined by various physicians on the staff of the State Hospital, most of whom expressed the opinion that he was insane. These facts appear in the reports of two meetings of the staff called by the superintendent to aid him in forming his opinion. The minutes of the first meeting indicate a "unanimity of opinion" on the part of the doctors of the staff opposed to the opinion of the superintendent.
The superintendent's report to the Superior Court was as follows: "I have examined Howard Long, committed to this hospital for observation as to his sanity, and as a result of my examination have formed the opinion that he is not insane, but should be classified as a psychopathic personality." The superintendent testified to the same effect at the trial. He mentioned the fact that the defendant had been examined by certain physicians on his staff but did not state, and was not asked, what opinions those physicians had expressed.
Defendant's counsel assert under oath that "previous to January 3, 1939, neither the said Howard Long nor his attorneys had any knowledge of the said opinions that the said Howard Long was insane." They further assert that the assistant superintendent of the hospital, who, according to the reports of the meetings of the superintendent and staff, expressed the opinion that the defendant was "definitely insane" and could not "logically be held responsible for his acts," has refused "to give his affidavit relative to his said opinion as to the insanity of the said Howard Long, and the said Howard Long has good reason to believe that the other doctors who rendered said opinions that said Howard Long was insane would likewise refuse."
The motion was followed by a petition praying the Superior Court to issue process to compel the above-mentioned physicians to appear before the court and testify at the hearing on the motion.
A hearing on the motion was had on January 21, 1939, and for the purposes of that hearing "the allegations in the motion relative to the existence and extent of the so-called new evidence" were assumed by the court to be true. The court found that "the so-called newly discovered evidence is to some extent cumulative," that on January 3, 1939, the assistant superintendent of the State Hospital told defendant's counsel "that he kept his opinion quiet because if it was made public it would give the hospital a bad name to have it appear that the doctors disagreed with the superintendent" but that there was "no suggestion that the superintendent or anyone in behalf of the state was responsible for this doctor's attitude or did anything to keep any information any of the doctors might possess from the knowledge of the defendant's counsel," that there was no reason why any information the physicians may have had could not have been obtained as readily before the trial as in January, 1939, if reasonable diligence had been used, that the defendant had a fair trial, that no injustice was done by the verdict and that it was not probable that a different result would be obtained upon a retrial.
The motion was denied subject to the defendant's exception. Transferred by Young, J.
Thomas P. Cheney, Attorney-General, and Harold E. Wescott, County Solicitor (Mr. Cheney orally), for the State.
John S. Hurley and William W. Keller (Mr. Hurley orally), for the defendant.
Thomas P. Cheney, Attorney-General, and Harold E. Wescott, County Solicitor (Mr. Cheney orally), for the State.
John S. Hurley and William W. Keller (Mr. Hurley orally), for the defendant.
Although no definite time for the filing of a bill of exceptions was fixed by the Presiding Justice or any request therefor made by the State, the strategy of defendant's counsel in delaying action until a stay of execution was imperative cannot be commended. It is unnecessary, however, to consider counsel's contention that their bill of exceptions was seasonably filed within the meaning of Rule 66 of the Superior Court ( 78 N.H. 688, 699).
The so-called confessions (two in number) were admitted in evidence "as tending to show" that the defendant "caused the death of Mark Neville Jensen." But the commission of the physical act of killing was conceded by the defendant's plea of not guilty by reason of insanity. Unlike the situation in State v. Bartlett, 43 N.H. 224, where the defense "in part" was monomania (see Burke v. Allen, 29 N.H. 106, 120), the plea did not put in issue all the allegations of the indictment but was in the nature of a plea of confession and avoidance (1 Wharton, Crim. Law, (12th ed.), s. 75), which empowered the Presiding Justice, in case the plea was accepted by the State, to commit the defendant to the State Hospital or to prison without a trial (P. L., c. 369, ss. 2, 3). In short, the material issue being that of criminal intent (State v. Jones, 50 N.H. 369, 382), the defendant's confession that he committed the physical act alleged is immaterial, and the admission of the confessions in evidence would appear to be harmless error. Fitch Co. v. Insurance Co., 82 N.H. 318, 320, 321.
Assuming, however, that the State was obliged to prove each element of the offense charged in the indictment, it would still be necessary to overrule the defendant's exception to the admission of the evidence in question.
The defendant in his first confession, so designated, stated that his automobile accidentally swayed and struck the boy as he was walking along the road. It was an exculpatory statement, denying guilt, and the rules governing the introduction and exclusion of confessions are therefore inapplicable. 2 Wig., Ev. (2d ed.), s. 821.
Before the stenographer took the so-called second confession, which was far from an unqualified admission of guilt, the Attorney-General said to the defendant: "I am the Attorney-General, and you don't have to talk to me a minute. Anything you say can be used against you. Now do you want to tell me the truth?" The preliminary finding of the Presiding Justice that the defendant "had been sufficiently warned of his rights" and that the confession was not obtained by threats on the part of the police is based on adequate evidence. The exception thereto presents no question of law. State v. Squires, 48 N.H. 364, 369, 370; State v. Pike, 49 N.H. 399, 407; Dunklee v. Prior, 80 N.H. 270, 272.
That the defendant could not have been prejudiced by the introduction of the so-called confessions appears from the fact (shown without objection) that while he was in the custody of the superintendent of the State Hospital for observation he freely admitted the killing of the boy and described his act definitely and in detail.
Conceding that the bill of exceptions was seasonably filed, the questions thereby raised are resolved in favor of the State.
The medical expert who testified in the defendant's behalf had not examined him. Hence the newly discovered evidence is not cumulative. Watkins v. Railroad, 80 N.H. 468, 477. The finding that this evidence could have been obtained before the trial if reasonable diligence had been used is not decisive of the defendant's rights, since in capital cases the strict rules of procedure applicable to ordinary trials should yield to "broad principles of equity and justice." Palmer v. State, 65 N.H. 221, 222. See, also, Buzzell v. State, 59 N.H. 61; State v. Wren, 77 N.H. 361, 366. And while the questions of fact involved in an application for a new trial are usually held to be entirely within the jurisdiction of the trial judge (McGinley v. Railroad, 79 N.H. 320, 322; Jackson v. Smart, 89 N.H. 174), it is always the duty of this court to determine as a matter of law whether the evidence on which the trial justice has based his findings is such that those findings can reasonably be made. State v. Wren, 77 N.H. 361, 366.
The moving party in a motion of this kind is generally required to present to the trial court the best evidence obtainable in support of the allegations of the motion. Huey v. Company, 81 N.H. 103, and cases cited. This the defendant's attorneys have endeavored to do, but the court has denied their request for the issuance of process to compel the attendance of the witnesses and has disposed of the motion on the assumption that the allegations it contains are true. We hesitate to hold that this sweeping concession as to the opinions of the numerous physicians whose testimony the defendant desires to produce can form a proper basis for the finding that no different result would probably be reached if a new trial were granted.
"Before a trial judge takes a case from the jury on an opening statement or excludes an offer of proof he ought to ascertain definitely if the statement or offer embraces the entire proof." Cavanaugh c. Inc. v. Barnard, 83 N.H. 370, 373. An analogous situation here exists. No inquiry was made as to the extent or details of the newly discovered evidence, and no precise information concerning it can be obtained unless the defendant's petition for the issuance of process is granted. The exception to the denial of the petition is therefore sustained.
If, on hearing the witnesses, the Presiding Justice finds that in a new trial, properly limited to the single issue of criminal intent, a different verdict will probably be rendered, either as to the defendant's guilt or punishment, a new trial should be granted. If a contrary finding is made, and no exception thereto is transferred for the consideration of this court, the sentence should be executed. The present order is
Execution stayed: case remanded.
All concurred.
BILL OF EXCEPTIONS. After the foregoing opinion was filed, the Presiding Justice heard the proffered evidence, and then made the following findings and ruling: "A further hearing upon said motion having been had and the defendant, as well as the State, having had ample opportunity to call all witnesses they desired and present such evidence as they wished, the Court is still of the opinion and so finds as a fact that there is no probability that on a new trial a different verdict will be rendered either as to the defendant's guilt or punishment. The motion for a new trial is denied." The defendant "duly excepted to said decision" and his bill of exceptions was allowed by Young, J.
An examination of the record discloses abundant evidence on which the decision of the trial court could reasonably be made. See State v. Wren, 77 N.H. 361, 367. The order must therefore be
Exceptions overruled.
June 1, 1939.