State v. Allen

It is not unusual and is entirely proper for the sheriff, in anticipation of a demand for talesmen, to procure the attendance in court of persons from whom talesmen could be taken if they should be required. He may do this pf his own motion, or upon the order of the court, and where the court makes the order, it may be either written or oral. And it makes no difference that the order was made in the absence and without the knowledge of a prisoner about to be put on trial, and without consulting his counsel. Nor that the court at the time the order was made was liolden by only one judge and the case about to be tried was a capital case requiring by law two judges. Where a capital case has been tried, and the jury discharged because unable to agree, it is no error for the same judges to proceed to a second trial before another jury at the same term of the court Where in a capital ease the number of regular jurors had been exhausted without making up the panel, and the prisoner’s counsel moved that the court order additional regularly appointed jurors to be summoned instead of appointing talesmen, it was held that the court committed no error in denying-the motion. The prisoner, while confined as a convict in the state prison, had conspired with’ a fellow prisoner named Hamlin to escape, and in attempting to do so in the-night they had encountered an armed watchman who endeavored to stop them - and was killed by a pistol-shot fired by one of them, after which they broke-through into the attic of the prison, where they were taken the next morning. Both were armed with loaded pistols—one of larger calibre than the other. The bullet found in the watchman’s body fitted the pistol of larger calibre,, which the prisoner claimed belonged to Hamlin, and that his own pistol was not discharged. It became an important question on the trial which fired the pistol. An officer of the prison, who found the two pistols in the attic at a-place where the prisoner informed him they were concealed, was called as a • witness by the prisoner, and asked whether the prisoner did not state to him: the condition (as to being loaded) of the pistol which he claimed to be his, before it was found by the witness. Held that,-as the prisoner had had full' opportunity after the homicide to learn as to the condition of both the pistols,his declaration could not be evidence in his favor. The prisoner claimed that the fatal shot was fired by Hamlin, and that'hefore it was fired'.he had abandoned' ffie aS§mpt_tqAscape and gone back to his cell. The court charged the jury that if the prisoner and Hamlin, some time before the homicide, determined to try to break out of prison together, and knowing the danger of their being shot by some of the watchmen deliberately supplied themselves with deadly weapons for the purpose of killing any one who should resist them, and while they were attempting to escape they were discovered by a watchman, and in the encounter which followed he was willfully killed by either while they were acting in concert, then both were guilty of' murder in-the first degree; and that the prisoner would be guilty of murder in the first degree if he in fact abandoned the attempt to escape just befara the fatal shot was fired by Hamlin, without informing Hamlin by word or act that he had so done. Held to be no error. The court further charged that if during the fatal encounter the prisoner suddenly abandoned Hamlin and the effort to escape, and went back to his cell without saying a word to Hamlin as to his abandonment of the attempt, and Hamlin, supposing that the prisoner was still acting with him and that he had gone to his cell for a weapon, committed the homicide in pursuance of their original purpose, the prisoner’s ab .ndonment of the attempt would be of no importance. Held to be error, as liable to mislead the jury. If the prisoner did in fact abandon the attempt to escape before the homicide, and with the knowledge of Hamlin go back to his cell, Hamlin’s misconstruction of his purpose in leaving did not necessarily make his conduct of no importance. It was necessary that the prisoner should have informed Hamlin of his change of purpose, but such information might be by words or acts; and if with the intention of notifying him of his withdrawal from the conspiracy he did acts which should have been effectual for that purpose, but which did not produce upon Hamlin’s mind the effect which he intended and which they naturally would have produced, such acts were proper for the jury to consider in determining the relation of the prisoner to the crime which was afterwards committed. His mere leaving and going to his cell had some significance on the question of his intention and of notice to Hamlin of it, and was proper for the consideration of the jury. The warrant under which Hamlin was committed to prison, held to be admissible to show that he was a lawful prisoner, and that the conspiracy of the two to escape was an unlawful combination.

Indictment for murder, in tire Superior Court for Hartford County. Tlio prisoner was indicted with Henry Hamlin‘and John H. Davis for the murder of Wells Shipman, a watchman at the state prison, the murder having been committed in an attempt of the defendant and Hamlin, who were convicts, to escape from the prison. Sundry questions made with reference to proceedings in the case before the several ■ defendants pleaded to the merits, are stated and disposed of fin the next preceding case of The State v. Hamlin and others. All the defendants pleaded not guilty, and Hamlin and Davis ■ elected (under the statute of 1874, then in force, but since repealed,) to be tried by the court without a jury. Allen ■was tried to the jury before Parle, C. J., and Carpenter, J. Upon the trial the State offered evidence to prove, and •claimed that it had proved, that the defendant and Hamlin, while prisoners lawfully confined in the state prison, conspired together to escape from the prison at all hazards, oven to the taking of the life of whoever might oppose them in their attempt, should the same become necessary in order to escap'; that this conspiracy and determination existed during a ■ " her of weeks preceding the homicide, and down to the same; that to carry out that purpose they provided themselves with two loaded revolver pistols, one a seven-shooter, and the other a four-sliooter, and with hand-cuffs and a guy; that in pursuance of their plan on Saturday, September 1st, 1877, about eight o’clock in the evening, they escaped from their cells and remained secreted on the top of the block of cells, just beneath the attic of the prison, with their pistols and other implements in their possession, until about twelve o’clock the same night, when, upon being discovered by Wells Shipman, an armed night watchman of the prison, they sprang upon him, each with a loaded pistol in his hand; that Shipman ran toward the alarm-bell, followed by Allen and Hamlin, who overtook him, when he sank down upon the corridor, and became insensible, and they hand-cuffed and gagged him; that Allen then went to his cell, leaving Hamlin with Ship-man, where ho was discovered when the guard, aroused by the noise, entered the prison hall; that Hamlin, upon being discovered and fired at by the guard, went to Allen’s cell, and both then went on top of the block of cells, taking with them an additional implement, a piece of round iron about eighteen inches long and about one inch in diameter, and Shipman’s pistol, which had been taken from him during the struggle; and that they then broke through the ceiling into the attic, and went thence into the cupola of the prison, where they remained until about five o’clock the next morning, when they surrendered and were locked in different cells. And the State claimed to have further proved that between the time when Shipman discovered Allen and Hamlin and the time when he was hand-cuffed and gagged, three pistol-shots and three only were fired by Allen, Hamlin, and Shipman, and two of them by Allen and Hamlin, and that Shipman by one of the two shots fired by the latter was shot in the heart, from the effect of which he died about ten o’clock the next morning; that Shipman from the time he was found handcuffed and shot suffered intense pain, was very much prostrated, and spake little except in answer to questions. The State further introduced the dying declarations of Shipman, given in answer to questions, in which he stated that Hamlin shot him with his (Shipman’s) pistol, while Allen stood by threatening to cut his throat at the same time./ And the State claimed to have proved further, that on the Tuesday following the murder one Arnold, a prison officer, found concealed in the attic of the prison the seven-shooter and the four-shooter, each fully loaded, and cartridges fitting the four-shooter; and that he also found in Allen’s cell cartridges fitting both pistols. These several claims of the State were denied by the defense. The counsel for the defendant claimed that it was proved by evidence introduced by the State and by the defense, that whatever conspiracy there was, if any, was a conspiracy to escape from the prison by bribing Davis, an officer of the prison, to permit them to escape, and to aid them in it; that the plan contemplated an escape through a window at the west end of the prison, near the top tier of cells, before nine o’clock in the evening, the time when Shipman’s duties as night watchman commenced; that there was no conspiracy or intention to take the life of Shipman or any other person, and that whatever was done after Shipman discovered Allen and Hamlin was not done in pursuance of any previous plan or conspiracy; that Shipman was not shot before he was hand-cuffed and gagged; that immediately after he was handcuffed Allen abandoned the enterprise and went to his cell; that tlamlin came to the cell and urged him with threatening language to come out and go on with the attempt to escape; and that Hamlin, after Allen abandoned the effort to escape, went back to the place where Shipman was lying and shot him, not in pursuance' of, but apart from, any purpose or design agreed upon or contemplated by the parties. The defendant claimed, and the fact was, that the seven-shooter was of a smaller caliber than the four-shooter, and the four-shooter of smaller caliber than Shipman’s pistol, and further claimed that the seven shooter belonged to Allen and had never been discharged, while the four-shooter belonged to Hamlin and had been discharged, the State at the same time claiming and the defense admitting that the pistol-ball found in Shipman’s body fitted the four-shooter, and did not fit either of the other pistols. The defense further claimed and offered evidence to prove that the three pistol-shots fired all produced about the same volume of sound, and claimed in the argument to the jury that they must have proceeded from Shipman’s pistol, and that the report made by the four-sliootor was much lighter, and that it must have been fired at a time considerably after the three shots mentioned in the claim of the State. And the counsel for the defendant in their argument to the jury claimed from Shipman’s dying declaration that after Shipman was left by Hamlin and Allen, Hamlin returned and shot him, from a sudden impulse, and because of the outcry of Shipman after he had been hand-cuffed and gagged. These claims of the defense were denied by the State’s Attorney, who claimed, and offered evidence to prove, that Shipman was an athletic man; that he lay upon the corridor from and after he was hand-cuffed and gagged till the prison officers came into the prison hall; that Allen’s cell was up one tier of cells from the place where Shipman was lying, and was upon the opposite side of the block of cells, about one hundred and fifty feet therefrom; that the hand-cuffs and gag did not prevent Shipman from going to give an alarm or to escape from the prison hall; that the whole prison was aroused by the firing of the three pistol-shots, together with the prison officers from the outside of the prison hall; that prisoners immediately commenced to shout and call from all parts of the block of cells, and were in great excitement; that in the meantime Shipman continued to lie upon the corridor feebly calling “ Deputy, Deputy;” that only three pistol-shots were fired before the prison officers entered the prison hall; and that Allen said at the time he surrendered, “This is a tough job; do you think we shall get the rope ?” The defense further claimed that there were facts and circumstances proved which tended to show that the seven-shooter was the pistol carried by Allen, and that the same had never been discharged. In this connection the defense claimed that it was a material question in the case whether Allen fired a pistol at all that night, and which of the two, Hamlin or Allen, fired the shot that killed Shipman. The State admitted that all the evidence in the case did not show which one of the two, Hamlin or Allen, fired the shot that killed Shipman, but claimed that that question was not a material one, and that proof that Allen did not fire the fatal shot could not under the circumstances affect the question of his guilt or innocence. To sustain the claim of the prisoner, his counsel called Arnold, the officer in the prison at the time of the homicide, who had testified that he had found the two pistols, the seven-shooter and the four-shooter, in the attic over the prison, and who now testified that he was informed where they were by Allen, and that he found them as directed. He was then asked by the prisoner’s counsel: “Did Allen inform you as to the condition of the pistol before you found it?” This question was objected to by the State’s Attorney and ruled out by the court, and the prisoner’s counsel excepted to the ruling. For the purpose of proving that Allen and Hamlin were lawfully confined in the state prison, the State introduced in evidence two warrants of commitment, committing Allen to the prison, and also two warrants of commitment committing Hamlin to the prison, covering and including the time when the homicide was committed. The defendant objected to the two warrants committing Hamlin to prison, claiming that they could not be received to affect Allen. The court were of the opinion that the evidence established a primd facie case of conspiracy between Allen and Hamlin, and admitted the evidence, the counsel for the defendant excepting. The court charged the jury as follows: “ If the jury shall find that Hamlin and Allen, at some time previous to the homicide, made up their minds in. concert to break the state prison, and escape therefrom at all hazard, and knowing that the enterprise would be a dangerous one, and would expose them to be killed by the armed watchmen of the prison, should they be discovered in making the attempt, willfully, deliberately and premeditatedly determined to arm themselves with deadly weapons, and kill whatever watchman should oppose them in their attempt; and if the jury shall further find that in pursuance of such design they armed themselves with loaded revolvers, to carry their original purpose into execution, and while engaged in efforts to escape from the prison were discovered by the watchman Shipman, the deceased, and in the scuffle which ensued he was willfully killed by Hamlin or Allen while they were acting in concert, and in pursuance of their original purpose so to do in just such an emergency as they now found themselves in, then Hamlin and Allen are both guilty of murder in the first degree. And in the opinion of the court Allen would be guilty of murder in the first degree if, in the state of things just described, he in fact abandoned, just before the fatal shot was fired by Hamlin, all further attempt to escape from the prison, and the infliction of further violence upon the person of Shipman, without informing Hamlin by word or by deed that he had so done; and Hamlin, ignorant of the fact, shortly after fired the fatal shot, in pursuance of and in accordance with the purpose of the parties down to the time of the abandonment. “ In other words, if during the fatal encounter with deadly weapons, in the state of things just described, Allen suddenly abandoned Hamlin, abandoned the enterprise, and went to his cell without saying a word to Hamlin to the effect that lie had abandoned the enterprise, and Hamlin, supposing that he was still acting with him,- and that he had gone to his cell for some instrument to carry on the encounter, fired the fatal shot, his abandonment under such circumstances would be of no importance. A man cannot abandon another under such circumstances and escape the consequences of the aid he has rendered up to the time of the abandonment. The law regards the aider and abettor in all cases equal with the principal in guilt, for it considers that without the aiding or abetting the crime would not have been committed. So the law holds all the parties concerned equally guilty, in cases of burglary it often happens that one person goes into the house, and three or four watch out of doors to give alarm to the one in the house if it should become necessary. In such cases each of the parties who renders assistance in watching is equally guilty with the man" who goes into the house to commit the crime.” The jury returned a verdict of murder in the first degree. The defendant filed the following motion in arrest of judgment: The defendant, after verdict, and before judgment rendered thereon, moves in arrest, because he says that heretofore, to wit, on the 27tli day of March, 1879, being at the same term of court, he was arraigned and put upon trial before a jury legally impaneled and sworn to try said cause, and that after a full hearing of said cause said jury were not able to agree and were discharged from the further consideration of said cause, and the twelve jurors who had been summoned for the trial of said cause, in addition to the regular panel of eighteen, were dismissed for the term, and thereafter, to wit, on the 10th day of April, 1879, being at the same term of said court, the State’s Attorney, in the absence of the defendant and of his counsel, and without the knowledge of either of them, and before the trial of the cause commenced, and before it appeared that it would bo necessary to summon talesmen in said cause, applied to said court, a single judge only holding the same, for an order to the sheriff to return fifty judicious electors in said cause, and thereupon the court, without the presence of the defendant or his counsel, and without their knowledge, issued such order, which order, with the sheriff's return thereon, is as follows: [setting out the same.] And the sheriff, in obedience to said order, did return fifty men as stated and named in his return on said order, before the defendant was arraigned for trial, and before it appeared that talesmen would be required, otherwise than from the statement of the State’s Attorney to the court, made at the time of making the application for said order, that a large number of said panel of eighteen were disqualified by reason of having served upon the former trial at the same term. And thereafter, to wit, on the 14th day of April, 1879, the defendant was arraigned for further trial before the same judges who had presided at the former trial, and, after the regular jury of eighteen had been exhausted and two jurors only accepted, the court ordered the sheriff to supply ten talesmen, and from time to time thereafter ordered the sheriff to supply talesmen as needed, without any direction as to their selection, until the panel was completed, and eight of the talesmen so supplied were selected by the sheriff from the fifty summoned to be in attendance as before set forth, and all talesmen supplied were selected from the said fifty, until they had all been called, and two talesmen were supplied afterwards. And that when, on said 14th day of April, 1879, he ascertained the action of the court, and of the sheriff as aforesaid, he objected to the same, and moved the court to order twelve additional jurymen to be summoned from the regularly appointed jurors of the term, in order to avoid the necessity for talesmen, but the court refused to grant the motion, and ordered the trial to proceed, and the trial did proceed before a jury impaneled as aforesaid, all of which he is ready to verify. Wherefore he prays that said verdict may be set aside and no judgment rendered thereon. The State’s Attorney demurred to this motion, and it was overruled by the court. The defendant thereupon moved for a new trial for error in the rulings and charge of the court, and also filed a motion in error.