State v. Wood , 127 Me. 551 ( 1928 )

Upon the respondent’s conviction of manslaughter under an indictment in which he was charged with murder, a motion for a new trial upon the usual grounds was made and denied by the presiding Justice, and an appeal taken.

The case presented only questions of fact.

The jury saw and heard the witnesses. Notwithstanding the denial of the respondent of his firing his rifle, and his producing the same number of unexploded cartridges as he claimed he took with him that evening; and it was testified that the opening in the back of the neck caused by the bullet which was presumably what is termed a soft nose bullet, was smaller than the opening in the face, and the testimony of witnesses that such bullets always “mushroomed” and the opening of exit was always larger than the entrance; and his explanation of his flight, that he believed they were being held up by bandits or gunmen; and his claim and that of his wife and one of his companions that the other officer fired the shot from behind that killed the deceased, the jury from the evidence may have found as facts: that the respondent and a friend and their respective wives during the evening of the shooting had been on a hunting trip on which the respondent and his friend had been hunting deer with a jacklight, which is prohibited by statute; that the respondent and his friend had been summoned from their illegal hunting by their wives, because of an automobile appearing near the locus where they were hunting and which had disappeared up the road along which they must pass on their return; that on their return, they were stopped by the deceased and another game warden; that as soon as the car stopped, the respondent stepped out with a loaded rifle on his arm, facing the deceased; that the moment the respondent started to leave the car, the other occupants called upon him not to shoot; that almost immediately a shot was heard, and the deceased went backward and fell; that following the shot, the respondent fled, armed, and leaving his wife to the tender mercies of the gunmen, if they were such; that as he started to flee, he ejected an empty shell from the rifle, and an empty shell was found the next day near the scene of the shooting and on the course of the respondent’s flight, which was fired in the rifle carried by the respondent; that the other officer did not fire his revolver until the respondent started to flee; and that the bullet entered the face of the respondent and passed out the back of his neck.

Cyrus F. Small, County Attorney and Raymond Fellows, Attorney General, for the State. J. F. Burns, Herbert T. Powers, for respondent.

We think it can not be said upon all the evidence, even with the added burden of proof upon the state required in criminal cases, that the jury were not warranted in arriving at their verdict. Appeal denied. Judgment for the State.