State v. Burke

54 N.H. 92 | N.H. | 1873

Hibbard, J.

I. The witness was properly permitted to testify. The object of the statute, which requires a list of the witnesses in a trial for a capital offence to be furnished to the respondent, is, to enable him to procure information about them. To furnish him with the true name of a witness, who was known not by that name but by another, however it might answer the requirement of the statute, would be of no avail to the respondent. To furnish him with the name by which a witness was known, though it might not be his true name, must give to the respondent every advantage which the statute contemplates. It may sometimes be a question of fact, to be decided by the court, whether the description of a witness given in the list was .sufficient to inform the respondent, with reasonable certainty, what person was to be called to testify against him. Suppose a witness is well known by two different names : if the respondent is actually informed who he is by one of those names being inserted in the list, how can it be said that the witness is not described with sufficient accuracy ? It is impossible to hold, as a matter of law, that a name by which a witness is known is not sufficient for the purpose of making him known to the respondent.

II. The motion to quash the fourth count was rightly denied. “ If the instrument by which the homicide was committed be not known, it is enough for the indictment to aver such fact.” Whart. Am. Cr. Law, sec. 1064; Whart. Law of Hom. 265; 1 Bish. Cr. Pro., sec. 553. “ The rule of reason, which exculpates offenders when what was done was compelled by necessity, excuses the pleader when alleging against a wrong-doer the-particulars of a criminal charge. He is not required to be more specific than the circumstances will permit.” 1 Bish. Cr. Pro., sec. 493. This count is similar to the fourth count in the celebrated case of Commonwealth v. Webster, 5 Cush. 297, 328, which was sustained by the supreme court of Massachusetts. In State v. Wood, 53 N. H. 484, it was held that an indictment which charged that the respondent produced an abortion “ with a certain instrument to the jurors unknown” was sufficient. “It isa principle of the common law, as well as of common sense, that what becomes absolutely necessary in the course of legal proceedings must be done; quod neoessitas eogit, defendit.” Note to United States v. Perez, 2 Lead. Cr. Cas. (1st ed.) 360.

We discover nothing in that provision, to which our attention has been called, of the sixth amendment to the United States constitution, which entitles the accused “ to be informed of the nature and cause of the accusation,” that could affect this case, though we were to assume that this constitutional provision is applicable to prosecutions in the state courts. The fifteenth article of the New Hampshire bill of rights, which secures every subject from being “ held to answer to any crime or offence until the same is fully and plainly, substantially and formally, described to him,” presents a question of greater difficulty. But we hardly think it can be truly stated that the “ crime or offence ” of which the respondent has been found guilty is not “ fully and plainly, substantially and formally, described to him ” in the fourth count. If we were to hold otherwise, we do not think it would be a fair interpretation of this article that one who is satisfactorily proved to have committed a murder shall go unpunished, because it cannot be ascertained in what manner or by what means he did it. Cases might arise in which, though the guilt was clear, the manner or means of committing the crime could only be conjectured. The proof might be satisfactory that a deceased person was in some way murdered by the respondent, without any circumstance appearing to indicate how he was murdered. Is the murderer exempted from punishment in such a case by virtue of this article ? We think not.

That the framers of the bill of rights intended to secure to an accused person a more particular description than was required by the common law, it is not reasonable to believe. Whether they may not have intended to secure to him as particular a description as the common law required, is a question upon which we express no opinion. It will be in season to determine that question whenever the court shall be called upon to consider the constitutionality of sec. 14, ch. 242, Gen. Stats., by which it is enacted that “ in indictments for causing the death of any person, it is not necessary to set forth the manner in which or the means by which the death of the deceased was caused; but it is sufficient, in every indictment for murder, to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased, aud in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased.” To sustain the fourth count, we are not required to rely on this statute. Whether a count which does not set forth “ the manner in which or the means by which the death of the deceased was caused” is sustainable unless it states that they are unknown, is a different question from that presented by this exception.

The exception on account of the instruction to the jury stands on the same ground and must be overruled for the same reason.

III. The motion that judgment be arrested or the verdict set aside was also rightly denied. Section 7, ch. 264, Gen. Stats., on which the respondent relies, is as follows : “ Manslaughter, without a design to effect death, not being murder nor excusable or justifiable homicide, shall be of the first degree when perpetrated by any person engaged in the commission of any offence, or when committed by two or more pei’sons, or by a person bearing any deadly weapon, either open or concealed, or when perpetrated in a cruel or unusual manner, or by means of any deadly or dangerous instrument.” It may be difficult to understand how the jury, under the fourth count, could have found the respondent guilty of manslaughter in the first degree, in accordance with the conditions of this section, but there is no reason for supposing that he was found guilty under this count. It must be understood that the jury were properly instructed that they were not authorized to find him guilty of manslaughter in the first degree, under any count of the indictment, unless they should find a state of facts to exist such as the statute requires. If a verdict of guilty of manslaughter in the first degree could not be sustained under the fourth count, for the reason that it was necessary that the jury should know in what way the killing was effected before they could determine that the respondent was guilty of manslaughter in the first degree, it can be sustained under the other counts. When there is one good count and a general verdict, judgment may be rendered on the good count. Arlen v. State, 18 N H. 563; State v. Canterbury, 28 N. H. 227; State v. Scripture, 42 N. H. 489; State v. Daniels, 44 N. H. 386.

Exceptions overruled.