98 Me. 17 | Me. | 1903
At an adjourned session of the September term of the Supreme Judicial Court in Somerset County, in the year 1901, a verdict of guilty was rendered by the jury against the defendant, Alexander Terrio, upon an indictment against him for the murder of
On the eleventh day of April, 1901, the dead body of Mathias Pare, a young Fi’encli Canadian who had for several years been accustomed to work as a woodsman in the forests of Maine during the winter season, was found by the side of a tote road on the banks of Misc.y Stream between Brassua Lake and the Canadian Pacific Railway, about a mile and a half from Asquith station. The body was fully clothed and nearly covered with brush and snow, but the partial melting of the snow had exposed a portion of the coat and the fingers of one hand. About a rod distant a hat and a woodsman’s pack were found. The left pocket of the trousers was torn and turned inside out, and within two or three inches from the end of this pocket a cartridge shell of a 30-30 Winchester rifle was found lying on the snow. It was picked up and placed on the breast of the body where it remained until the body was removed on the fourteenth of April. This cartridge shell exactly fitted the chamber of the respondent’s 30-30 Winchester rifle, and by reason of the distinctive marks alleged to have been made by the firing-pin of the rifle upon the primer or cap of the shell at the time the cartridge was exploded, as will be hereafter more fully shown, became evidence of vital importance tending to connect the respondent with the commission of the crime. On
From the subsequent examination of the body made at the autopsy, it appeared that Pare had received a rifle bullet through the chest and another through the right arm. A fragment of a leaden bullet, with a small piece of a steel jacket, was also discovered in a wound in the left arm. The State claimed that all of these wounds might have been made by bullets and steel jackets from a 30-30 rifle. The respondent claimed that the hole through the right arm was larger than the other, and suggested that more than one rifle may have been used. All the bones of the skull were broken and crushed as if by a blow from some heavy instrument like the back of an axe or the butt of a rifle stock. There was also an incised wound on the neck which might have been made with the narrow blade of a pocket knife. At the time the clothing was removed from the body, a metalic case of a bullet from an exploded cartridge and apparently a 30-30 rifle cartridge, dropped out of the clothing.
From the time of these discoveries, it was never in question between the State and the respondent that Mathias Pare came to his death by violence and criminal agency. At the trial the corpus delicti was not in controversy. There was equal moral certainty that he was murdered on the eleventh day of March between the hours of ten and twelve in the forenoon, one month prior to the discovery of the body.
On the banks of Moose River between Brassua and Moosehead Lakes is a primitive settlement known as Rockwood, comprising sixteen houses within the limits of a little more than two miles from Rockwood post office on the shore of Moosehead Lake, including those of George Ritchie, Willie Butler, Felix Butler, Vede Gilblair, the respondent Alexander Terrio, John Raspberry, .Fred Parent, Joseph Murray and Sylvere Gaudet. During the winter preceding the murder, Pare had been at work for Gaudet in the woods north of Moose River, and on Saturday morning March 9, he received
Pare spent the remainder of that Sunday night at Gaudet’s house in company with George Vigue, and at half past seven o’clock the next morning, March 11, he set out on foot for Asquith station, about seven miles away, carrying a canvas grip or valise and a woodsman’s pack, intending to take the train there on his homeward journey to Canada. Between eight and half past eight o’clock he called at the house of Fred Parent and obtained from Mrs. Parent an old envelope in which he placed a portion of his money, leaving the bal
It is not within the scope and purpose of this opinion to retrace the steps of the government officers throughout the field of investiga
Recognizing the obvious motive of the crime and the fact that it was unquestionably committed by some one having knowledge of the victim’s money and intended journey, the government officers sought by the process of exclusion to narrow the field of inquiry and to ascertain, in the first place, whether all of Pare’s merry companions of Sunday afternoon and evening March 10, who saw his wallet and knew it contained substantially his winter’s wages, could satisfactorily explain their whereabouts and movements on Monday forenoon March 11. One of them who became prominent in the investigation, acting as guide for the sheriff, was Joseph Murray, a young woodsman 28 years of age, who had a camp on the west shore of Brassua Lake, six miles from his home at Rock wood. He was interviewed by the sheriff on the fifteenth of April, two days before the arrest of the respondent, and testified at the preliminary hearing and at the trial before the jury.
It is contended in behalf of the respondent that this story of Murray’s movements that Monday forenoon is wholly uncorroborated by any witness, and that nearly every feature of it is so extraordinary that Murray himself has even been subjected to suspicion of complicity in the crime. It is deemed to be unreasonable that .he should make a journey of twelve miles on a stormy day to obtain a few fish for his brother-in-law, and that although he claims to have left home
But Murray further states that on the seventeenth of April, the respondent Terrio, after his arrest, was left in his charge by the officers at Moosehead Lake for a few minutes, and after some conversation Terrio stopped talking a minute or two and then said: “Joe, the way the sheriffs are talking, you must have saw me that day,” Murray’s reply was: “No sir, I didn’t.” It appears that Murray never disclosed this statement imputed to Terrio in any of the interviews with the officers prior to the preliminary hearing; and made no mention of it in his testimony at that hearing; and it is insisted in behalf of the defense that a statement of such marked significance, practically tantamount to a confession of guilt, must have made such an impression upon the mind of Murray that he could not have failed to recall it and inform the offcers of it before the preliminary hearing, if it was in fact uttered as he now claims.
Simeon F. Newton was another woodsman, thirty-eight years of age, residing at Jackman, but having business and social relations with the residents of Nockwood on the lower Moose Niver. Saturday night and Sunday, March 9 and 10, he was at Martin Munster’s near Asquith station “sporting and having a good time.” He left Munster’s Monday forenoon about half past ten o’clock, after an early dinner, and taking the Misc.y tote road, started for John Holden’s at Moosehead Lake. When he reached the thick woods near the burnt land, where he afterwards learned Pare’s body was found, he says he noticed that the tote road was,“all tracked up with snow-shoes,” and about ten or twelve rods below he saw the same tracks crossing the tote road again. He noticed that the track made by one of the snow-shoes was larger than the other. He further states that he saw blood in the road at that point. On the left hand side of the road, about ten or twelve feet from the road, he discovered a valise or grip, and ten or twelve rods distant, he saw a man on snow-shoes with a rifle on his shoulder, going into the woods out of sight “as fast as he could travel.” The man was back towards him and going in the direction of Brassua Lake. At that time he had never seen Temo to know him, but on the 13th of April following, when Newton was employed as cook in Holden’s camp on the Sockattin drive, Terrio, who was also employed by Holden, was sent from the farm to the camp with the mail to be delivered to Newton for the crew. Newton says he recognized him at once as the man he saw hastening into the woods from the scene
On Monday the eleventh, as already noticed, Newton reached Felix Butler’s about one o’clock and there met Joseph Murray, but neither appears to have mentioned to the other or to Butler what he had seen that day. Early in September following, however, Newton did say to Felix Butler, according to the latter’s testimony, that he saw nothing on the tote road that Monday forenoon the eleventh of March, except a grip and some blood. He made no mention then of the fact that he saw a man disappearing in the woods, whom he afterwards recognized as Terrio. Two witnesses for the defense state that they rode from Rockwood to Asquith that day on a sled with one horse and as the horse was walking slowly along the tote road, where Pare’s body was afterwards found, they saw blood in the road, and something outside of the road covered with boughs and received the impression that some one had killed a deer and attempted to conceal it. They saw moccasin tracks near there, but say that there were no snow-shoe tracks whatever in that vicinity. Again, if Newton was at the scene of the murder so early as to detect the criminal in the act of escaping, he must have been so near when the fatal shots were fired that he would have heard the reports of the rifle. But there is no evidence that any such reports were heard by him.
It is insisted in behalf of the defense that the testimony of Simeon Newton is wholly unworthy of credence. Though his sense of duty to the public was so obtuse that at first he fled frorii the State rather than disclose potent facts within his knowledge which might bring •to justice the perpetrator of an atrocious' crime, his testimony at the trial affords no indication of unwillingness on his part to aid in the conviction of Terrio by means of an identification that is manifestly uncertain and unreliable. It is claimed that his conduct was so strange and his testimony so remarkable that he too has subjected himself’ to the suspicion of having more information than he has
Conduct and Declaration of the Accused. Alibi. On the other hand several important declarations made by the accused after his arrest are so completely overborne by other testimony, or are so highly improbable in themselves, that they have strong criminative significance against him.
In his written statement to the sheriff Terrio says he remembers that on that Monday morning after he saw Pare Sunday night, he went into the woods to cut wood about half-past seven or eight o’clock, worked until noon and then came out to the house to eat his dinner. It stormed so hard in the afternoon that he stayed in the house and laid a chamber floor.
But John Calder called at Terrio’s house about one o’clock that day to warm a dish of tea on the stove and saw Mrs. Terrio and the children at the dinner table, but did not see Terrio himself there. Fred Dube met him at the water-hole on the ice in front of his house between four and half-past four that afternoon, and Terrio then said that he had been gone all day and just come home. In her testimony, Mrs. Terrio had stated that her husband went into the woods to cut wood that forenoon without taking his rifle with him, and returned aj; one o’clock. In the afternoon he laid a chamber floor. But her testimony was impeached by her statement to officer Haskell that her husband did not come home to dinner that day, but returned about five o’clock, and her further remark to Angie Parent that her husband took his dinner with him that day because it was stormy. There was also evidence that the chamber floor was laid at another time. An alibi is the instinctive and favorite resort of conscious guilt as well as the natural defense of innocence; but an unsuccessful attempt to establish it is necessarily highly prejudicial to the accused, for 'the obvious reason that such a defense implies an admission of the truth of the facts alleged against him,
In the same written statement to the sheriff Terrio says that about three o’clock that afternoon he loaned his snow-shoes to a “light-complected” young man wearing a red frock, whom he never saw before and has never seen since. The young man said he wanted them to go to Kineo and promised to return them the next morning, but failed to do so. A week later, however, he found them sticking in a snow bank about twenty rods above his house. Two witnesses for the defense testify that they saw the snow-shoes there on the snow bank about that time. This labored suggestion in regard to the loan of the snow-shoes to a stranger would seem to have been inspired by the hope of accounting for the snow-shoe tracks seen by Murray and Newton, without Terrio’s personal presence; but inasmuch as he states in his testimony that he is not sure whether the loan was made on the 11th or 12th of March, and in any event it did not occur until three o’clock in the afternoon, it obviously fails of .its purpose and whatever importance it does possess is prejudicial to the accused.
Fruits of the Grime. The Money. The recent possession of the fruits of crime involving larceny and robbery, in the absence of a satisfactory explanation, raises a natural presumption of fact that the person in whose possession they are found is the perpetrator of the crime. But the strength of this presumption obviously depends in a great degree upon the nature of the property in question, the time within which the possession is shown and various other conditions which give occasion for the application of the rule. In the case of bank bills which readily pass as currency from hand to hand, and which are not specially identified as the fruits of the crime, the' presumption may be very weak or there may be none at all. But even in such a case, a sudden change in the life and circumstances of the accused immediately after the crime, followed by inconsistent and improbable explanations of the change, may equally justify an inference of guilt.
In the case at bar the State attaches great importance to the evidence tending to show that- while for several months before the murder Terrio’s earnings had been small and his money insufficient
In accounting for his recent expenditures Terrio claims that he had $400.00 in money and a $200.00 note when he left Madison two years and a half before, and that after he settled in Rockwood, he buried $250.00 in his cellar enclosed in a salt box for safe keeping. He never received but five dollars as interest on the $200.00 note and lost the principal. He stated first that the $43.00 of bills which his wife took from the sewing-machine and gave to the officer were a part of the money buried there, and that he took out $100.00 that Spring to pay his bills. At his request his former counsel went to his house at Rockwood and made diligent search for the money alleged to be buried in the cellar, by digging according to his directions, but no money or traces of a hiding place could be found. In explanation of the fact that he paid only $50.00 down for the Raspberry place, when he had money enough to pay the entire $170.00, he says that Raspberry did not want the money, but preferred notes without interest for all above $50.00. When officer Haskell informed him that they were well satisfied that the five and ten dollar bills, which made the $43.00, taken from the sewing-machine drawer, came from Niñeo, he became excited, threw up one of his hands and
One other declaration the State deems significant. In a conversation at Ivineo, officer Haskell said: “Aleck, where is that envelope?” He says, “What envelope?” I said, “The envelope that had the money in it.” He thought a minute and he says, “I think I stuck it up in the crack by the window in the house.” At that time no envelope had been mentioned in connection with the case except that in which Pare concealed a part of his money under his sweater. But as Terrio had shown no disposition to confess his guilt, it seems a forced suggestion that having “thought a minute” he made such an answer, understanding that the question had reference to the Pare envelope. It seems but just, to suppose that he was thinking of some other envelope.
The antecedent threats alleged to have been made by Terrio against Pare do not seem entitled to weighty consideration.
If it be conceded that the foregoing circumstances and coincidences, considered in combination, aud with relation to the conduct and declarations of the accused, with all the inferences which a jury might justifiably draw from them, would induce an affirmative belief of a strong probability of guilt, the evidence must still be considered with
Characteristic marks on the primer. Expert testimony. After it had been demonstrated by actual experiments made successively by the County Attorney, and two officers, that the shell of the 30-30 rifle cartridge found by the side of Pare’s body exactly fitted the Terrio rifle, the shell was accidently crushed in a letter press by the County Attorney, and was thereafterward known in the case as the crushed shell. Observing the indentation made by the firing-pin, on the primer of this shell, it occurred to the mind of County Attorney Gower, that the firing-pin of every rifle might be found under the microscope to possess such an individuality that its characteristic marks would be impressed on every primer exploded by it, and that the marks on the primer might also be seen under the microscope corresponding with those on the firing-pin. If so, it .would afford circumstantial evidence of the certain kind where the fact in dispute is a necessary consequence of the fact attested and could not have been caused by any other. The crushed shell, the Peary shell, the Terrio rifle and six other 30-30 rifles were accordingly sent to Dr. Frank N. Whittier, professor of bacteriology in Bowdoin College, and an expert in the use of the microscope, who made a critical examination of the primer of the crushed shell, the Peary shell, and of several other shells, and of the firing-pin of the Terrio rifle and of six other 30-30 rifles, by the test of the microscope, and photographs of microscopical views, magnified 25 diameters or 625 times. Called
“ The first thing that I noticed in examining this shell under the microscope was a very prominent circle or ring, at the very center of this depression. That cannot be seen at all with the naked eye. Inside this ring I saw an L-shaped figure, a figure that, viewed under the microscope, seemed very plain. Then, at one end of the L-shaped figure, I saw a figure that somewhat resembled a claw, and that, in speaking of it, I would like to call a claw-shaped figure. Both of these figures, the L-shaped figure and the claw-shaped figure were inside the ring that I spoke of a moment ago. All these things were microscopic. They were so small that they could not be seen with the naked eye. Just outside the ring was a star-shaped figure, a figure that resembled somewhat a star. That also was so small that one could not see it at all with the naked eye. Outside this comparatively large and prominent ring — of course .it is really very small indeed — but outside of this central ring I have been speaking of was a number of other rings. I could make out, in places at least, nine other rings, one outside of the other. I could also make out certain lines, ridges and grooves, amounting to at least twenty, little ridges, depressions or rings, that were on the surface of this little depression; but the most prominent things that I could see were the four things that I have mentioned, the central ring, the L-shaped figure, the claw-sliaped figure and the star-shaped figure.”
“I examined the firing-pin on the same day that I examined the shell, that is, under the microscope, and I found appearances which corresponded exactly to the appearances on the shell, with the exception that everything was reverse as regards right and left. .... I found an L-shaped figure with the angle turning in the opposite direction from the L-shaped figure on the primer. . . . The L-shaped figure was a ridge on the primer, and a depression on the firing-pin. I found there two things: The L-shaped figure and the claw-shaped figure inside of a central circle which corresponded to the central circle of the primer. The central circle containing these in the firing-pin corresponded to the central circle of the primer, except that the circle was a ridge on the firing-pin; it was a depression on*34 the primer. I found the star-shaped figure outside this central circle.”
Dr. Whittier discharged a cartridge in the Terrio rifle, and made a photograph of the primer of that shell. It shows the same prominent markings that are shown by the photographs of the crushed shell. -ITe examined under the microscope the firing-pins of other 30-30 rifles, but found no marks upon them corresponding with the marks found upon the firing-pin of the Terrio rifle. He also discharged cartridges from the other rifles, and examined the primers of those shells under the microscope, but found no marks upon them corresponding with the marks upon the primer of the Terrio shells; but in every case the mark on the primer of the shell corresponded with the mark on the firing-pin of the rifle that discharged that shell, with the difference that the right was left; and prominences were represented by depressions. In no instance did the markings upon the primer of a shell discharged in one rifle correspond with the markings on the primer of the shell discharged in any other rifle; and no two firing-pins could be found that were identical.
In regard to the Peary shell, found on the eleventh of May, about fifty feet from the place where Pare’s body lay, Dr. Whittier says he was unable to determine whether it was fired in the Terrio rifle or not, by reason of the erosion or rusting that had taken place. The photograph of the microscopic view of the primer of that shell discloses no marks similar to those on the primer of the crushed shell. Dr. Whittier also explained the use of the micrometer, or measuring scale used by him, which makes actual measurements of any microscopic object in thousandths of an inch. By means of this instrument he measured the ridges and depressions constituting the markings on the primer of the crushed shell and found that they corresponded exactly with the measurements made upon the firing-pin of the Terrio rifle.
The respondent was unprepared to meet this novel and interesting phase of the State’s evidence, and could only present the negative results of other hasty and imperfect examinations which failed to disclose these characteristic marks on primer and firing-pin. The evidence thus went to the jury with substantially the full effect claimed
But upon the motion for a new trial on the ground of newly-discovered evidence Prof. O. W. Knight, State assayer and expert microscopist, was authorized by the court to make a careful and exhaustive study of the question for the purpose of testing the accuracy of Prof. Whittier’s conclusions. Prof. Knight thereupon made a thorough examination, under the microscope, of the crushed shell and of the end of the firing-pin of the Terrio rifle; and finally by the aid of photographs, he was able to find all of the markings on the primer of the shell and on the firing-pin, as described by Dr. Whittier. He thus verified the conclusions of Dr. Whittier, that there were characteristic marks on the end of the firing-pin of the Terrio rifle which made a corresponding imprint upon the primer of every cartridge discharged in it and that the marks on the primer of the crushed shell corresponded with the'marks on the Terrio firing-pin.
But it will be remembered that Dr. Whittier testified, in effect, that he was unable to distinguish any characteristic marks on the primer of the Peary shell on account of the-corrosion that had taken place. Prof. Knight thereupon undertook a series of experiments, which Prof. Whittier had not attempted, for the purpose of determining to what extent this corrosion would take place under given conditions, and whether such inconceivably fine and delicate marks as those in question, which could be seen only by the aid of a powerful mici’oscope, might not under some conditions, disappear altogether in a short space of time under the effect of corrosion. In relation to these experiments Prof. Knight testified inter alia as follows: “On the 2nd day of March, 1902, I fired a number of shells in a rifle hired for the occasion. One of these shells I sealed in a glass tube so that it would show its original condition and would
“I will now state the different stages of the corrosion of the face of the primer of the six shells exposed in the snow from April 3 to May 3. Examined under the microscope April 13, the markings upon the primer had begun to disappear’ somewhat and were much less sharp at the edges than they were April 3. April 20, the markings were very faint, far fainter than the markings of the crushed shell, and the photographs taken there are included in the exhibits.
After explaining the several causes which might tend to induce corrosion, Prof. Knight further testified that he should expect to find a deeper impression on a shell that was fired in a rifle and exploded than he would if the empty shell was afterward put into the same rifle barrel and hit with the firing-pin under the blow of the rifle hammer. “When the .shell was loaded, and put into the rifle, the firing-pin coming down on it would exert a force tending to depress the primer; almost at the same instant the explosion of the material within the shell would exert a force in the opposite direction, and between these two forces the soft metal composing the primer would be forced into the pores of the firing-pin. In the second case a shell, when it had already been exploded, when it were put into a rifle and the firing-pin dropped on it, there would be only the one force, the force of the spring of the firing-pin acting and the impression would not be so deep, because there would be nothing to force this soft metal into the pores of the firing-pin.”
In this connection the figures of the measurements showing smaller “depressions and ridges” in the marks on the primer of the crushed shell than on the primer of the other shells have possible significance. It is asserted with confidence, in behalf of the defense, that these
Prof. Whittier was not called to rebut or controvert this evidence of Prof. Knight, and if it had been presented at the trial in connection with the evidence of Dr. Whittier, it is not improbable that it would have raised in the minds of the jury a reasonable doubt whether the characteristic marks on the primer of the crushed shell were made by the Terrio rifle at the time the cartridge was exploded on the 11th of March, or accidentally made on the empty shell at a subsequent date; and if they had a reasonable doubt respecting that proposition, it is not improbable that they would have had a reasonable doubt in relation to the guilt of the accused and returned a differ
With respect to the motion for a new trial based on newly-discovered evidence the entry must accordingly be, Appeal sustained; Motion sustained; Verdict set aside. New trial granted.