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Vol. IV.]

State v. LAPAGE.

[No. 9.

school;

Lapage on that road once, in the last part of September, on Sunday; saw him standing about a mile from my house beside the road, opposite some bushes; my daughter was with me; noticed nothing in his hands when I first saw him. Saw him again about half a mile farther on; he was coming towards me; this was two weeks before I heard of the murder; he had something in his hand the second time I saw him ; it was a stick, or cane ; think that the stick was a newly cut stick; think it was larger than the stick found in the woods of the murder ; had it in his right hand. The second time I saw him he was coming along behind me, about a hundred feet; I watched him by looking behind me; was about twelve feet away when I last saw him; he was moving rapidly toward me, partly running ; my daughter was very much frightened, and was crying; it was between four and five in the afternoon when I saw him the first time ; saw him next time half a mile farther on in the road, following on after me; had been walking ; turning to look at my daughter, saw a man picking berries on top of a hill ; when I turned to look at my daughter, saw Lapage going into the bushes; went about half a mile farther with my daughter; sat on top of the hill till I thought my daughter had got out of hearing — about fifteen minutes, I think; George Mack [the man who was picking berries] waited, and came home with me. The person I met with a club was Lapage, the prisoner.

Cross-examination. My daughter and I were going to Hooksett; it was on Sunday; it is four miles from my house to where she taught school; went with her about two miles ; there are chestnut woods along the road; first saw the man about a mile from home; he was just outside of the road; he was about fifty feet away then, standing still ; did not see him again until I had passed the place, and turned back and saw him again ; he stood still till I passed out of his sight by a turn in the road; it was two or three minutes' walk before I got out of sight of him ; went with my daughter more than a mile; went nearly half a mile before I saw him again ; he was coming in the road; could have seen a man quite a little distance; when I saw him last he was partly running towards me, and came to within a few feet of me; saw the man picking berries there, near Lakin's shanty, a short distance away ; saw no one else but Mack's little boy; the man with the stick went into the woods on the opposite side from where Mr. Mack was. The man I saw was not very tall, with black whiskers, tan-colored overalls, and gray mixed coat. Wore a dark hat. Next saw the man in jail; can't tell when; went there at the request of Mr. Hildreth; he mentioned no name of any one at the jail, but wished me to go and see if there was any one there that I had seen before. Mr. Hildreth, Hattie Gault, and some others went to the jail with me; Mr. Sargent asked me to go and look in every cell and see if there was any one that I had seen there ; went in, and when I saw Lapage, knew him at once by his looks and features; did not notice Lapage's moustache when I met him in the road; don't think his beard was as long in jail as when I saw him in the road.

Re-direct. My attention was called to some clothing at the jail, and I picked out a coat that I thought was like the one he wore. [Coat shown, and thought to be the same by witness.

Matthias Mercy testified as follows: I know Annie Watson ; saw her

first saw the about fifty feet place, and

Vol. IV.)

STATE v. LAPAGE.

[No. 9.

on Chester turnpike one Sunday last September ; saw her about two and a half or three miles from Suncook saw-mill; was in the road when I met her; had not seen her before ; said nothing to her; sat down on a rock beside the road ; saw Lapage while I sat there; I knew Lapage before; he was running towards the girl; when he came up to me he faced towards me; his face was red and excited; he had been running half a mile, and more too; he never said anything to me; he looked right toward her; he slacked up a little, and then started off on a run ; don't know whether he saw me or not.

Cross-examined. I had seen Lapage before I saw him in the road; saw him in his house in Potter's Block ; saw him in the road on Sunday - the last Sunday in the month; saw a man and woman that day; their names were Palmer; they live in Allenstown; saw them when I was going up, and the girl when I came back; went up as far as Lakin's hill, turned, and came back; it is about two miles from Suncook to Lakin's hill; saw Lapage, as I was coming back from Lakin's, about five o'clock at night; met the Watson girl the other side of Lakin's hill ; I walked about a quarter of a mile and sat down ; heard Lapage running in half a minute; saw Lapage walk up the hill, and begin to run when he reached. the top; this was after he passed me.

Anna A. Watson testified that she was the daughter of Mrs. A. Watson, and taught school in Hooksett last September ; came home Friday nights and returned Sunday nights, usually. On Sunday night, a fortnight before Josie Langmaid was killed on Monday, she met two persons on the road; met T. Marcy on the road ; she and her mother were followed by a man that Sunday ; he was in the bushes, partly bent over, and she noticed he had dark whiskers. As they were going up the hill by a shanty she looked back and saw the man again, coming after her, some ways from where she first saw him, and he was on the side of the road, as near as across this room ; he had a stick in his hands, travelling fast; he was walking, and he nearly overtook us. She was so frightened that she thought she would go up the hill as soon as possible, and in a few minutes she saw Mr. Mack; the man disappeared in the woods, and she did not see the man; he went into the woods again ; after her mother left her she ran ; she could not identify the man, she was so frightened at the time.

Julienne Rousse testified that she resided in Joliet, Canada, and was a sister of Joseph Lapage's wife, and knew him ; saw him last four years ago last June, before seeing him in Concord; saw him at her home in Desier Marion.

Went to a pasture to milk cows while living at St. Beatrice, Canada, and met Lapage there ; when I arrived at the pasture the cows were not there ; Lapage was above in the pasture, with a buffalo robe mask on his face, a home-made faded red shirt, and pair of linen pants, with a leather belt around him, and a pine root in his hand the size of her arm, and about three feet long; he was four or five rails from her. A rail is ten feet ; the place was not in sight of any house; it was seven o'clock in the morning, June, 1871; he tried to catch her ; she shouted and tried to run away; after she had gone four or five rails he overtook her, caught hold of her, and she turned round and pulled the mask off of him, and rec

Vol. IV.]

State v. LAPAGE.

[No. 9.

ognized Lapage by his face; he then rolled his head into her skirt and tried to choke her. After he choked her she turned on her belly, and then he rubbed coarse sand into her eyes and mouth; after she was choked and lost her strength he outraged her; lost her strength and mind, and did not know when he left her; she was gone two hours before she reached the house, which was ten acres away, or about one third of a mile; he did not strike her with the stick, but committed rape upon her; after coming to she went to her home. He choked her throat with his hand, which left black marks upon her throat. The marks were upon her throat for a month, and her neck was very black where his fingers were, and for a month she had great difficulty in eating and drinking ; was twentyseven years old, and never married ; Lapage was married at that time, and lived twenty-five or thirty acres from her home; saw Lapage the next day, but had no conversation with himn ; was living with a Mr. Marion then; had never seen or spoken to him since; he went to the United States at once.

Cross-examined. First talked of the outrage upon her to Joseph Lajeunnesse and his daughter, the same day at nine o'clock, they being at Marion's house at the time. Three children of Marion, the oldest seven years old, and Lajeunnesse's family, were the only ones in the house ; could n't tell where the Lajeunnesse family now lived, except that it was in a place called Acton ; they left St. Beatrice three years next March, she thought. Next talked of the outrage with Mr. Marion and his wife, at three o'clock the same afternoon; employed no doctor for her injuries ; Lapage first seized her by her throat. After she was down on the ground, he grabbed her by the back to throw her down, and attempted to commit the outrage, when she screamed, and he seized her throat. He turned her over after he choked her, and this was after the sand was put into her eyes and mouth, at which time she was sensible ; but she lost her senses when he committed the outrage, and did not know when she recovered her senses, but was gone two hours before she got back to the house. She pulled the mask off so far as to see his eyes, and she knew the man before she pulled the mask from him. The mask was tied with two black strings, and she pulled it down so she saw his forehead ; had a hat on when she first saw him, and when she grabbed his mask bis hat fell off. He tried to murmur a few words of English, so as to disguise himself. She understood that Lapage knew that she knew him, and so tried to disguise himself by attempting to talk English. She had no talk with him, but screamed; Lapage had a farm, and worked on it, which belonged to Edward Perrault. Spoke to Edward Perrault about the outrage upon her. She asked him if Lapage was at home, and he said he was not, but had started for the States. She never said to Perrault that she did not know who it was that assaulted her, and had no conversation with him about the outrage.

To the admission of all the foregoing testimony the respondent excepted.

Hattie M. Gault testified as follows: Lived on Pembroke Street, a half mile this side of the academy, and attended that school October 4, and reached the school about 8.30 that morning; bells rung at 8.25 and 8.55 o'clock ; stood in the door of the academy and saw Lapage pass the

home, and he sit that she did nabout the outra

Vol. IV.]

STATE v. LAPAGE.

(No. 9.

building, and was as confident of it as she could be; he had an axe on his shoulder, and turned down the Academy road, and she watched him as far as she could see him on that road. Next saw him at the jail, and identified him as the man who passed the academy.

Concerning the foregoing evidence the court charged the jury as follows:

“ You have heard the testimony of Julienne Rousse to the effect that in June, 1871, this prisoner committed a rape upon her. In considering this evidence (if you believe the witness), you will be required to use careful discrimination of the way and manner in which it is to be applied to this case, if it is to be applied at all.

“ We have admitted the evidence, not because it is necessarily connected with the issue which you are to try, — which is, the guilt or the innocence of the prisoner of the offence with which he is here and now charged, — but because it may have a legal bearing upon that issue in the way which I shall endeavor to explain, and to which I invite your most careful attention. It may be your duty to reject the evidence entirely, and put it out of the case, and out of your minds. It may be your duty to consider it. It is a fundamental principle of law, that evidence that a defendant committed one offence cannot be received to prove that he committed another and distinct offence. This principle we must take care not to violate. And, therefore, you are not to regard the evidence of Julienne Rousse as any proof or evidence that the prisoner killed Josie Langmaid. Therefore, unless you find from other evidence, entirely independent of that of Julienne Rousse, that the prisoner killed and murdered Josie Langmaid, you must reject her evidence altogether.

“ The evidence is open to your consideration, if at all, only so far as it may seem to you to bear upon the character of the homicide of Josie Langmaid; only as it may bear upon the question whether she was murdered by the prisoner in perpetrating or attempting to perpetrate rape.

“Our statute declares that · All murder committed by poison, starving, torture, or other deliberate and premeditated killing, or committed in attempting to perpetrate arson, rape, robbery, or burglary, is murder of the first degree; and all murder not of the first degree is murder of the second degree.'

"66 And if the jury shall find any prisoner guilty of murder, they shall by their verdict find also whether it is of the first or second degree.'

« If you find, from other evidence in the case than that of Julienne Rousse, that the defendant killed Josie Langmaid deliberately and premeditatedly, or in perpetrating or attempting to perpetrate rape, you may and your duty is to reject her testimony altogether. But if you are not so satisfied by all the other evidence and circumstances of the case, you may consider her evidence. I need hardly say that you must be satisfied upon this point, that the prisoner is the man who committed the rape upon Julienne Rousse.

“ The evidence you see, therefore, bears only upon the question of the intention of the prisoner in killing Josie Langmaid, and thus upon the degree of guilt, i. e. whether the offence is murder of the first or second degree.

Vol. IV.]

State v. LAPAGE.

[No. 9

“Now, the unlawful intent in a particular case may sometimes be inferred (not necessarily, but it may be inferred] from a similar intent proved to have existed in previous transactions.'

“ The principle upon which such evidence is admitted is, that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet, whenever the evidence which tends to prove the other crime tends also to prove this one, not merely by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible.'

“If, in this case, you find it necessary to show the commission of, or the attempt to commit, a rape upon Josie Langmaid, in order to find the prisoner guilty of murder in the first degree, and the evidence of the mutilation and concealment of the private parts of her body are not sufficient to satisfy you of that fact, then you may inquire what other motive induced him to kill her.

“Does the testimony of Julienne Rousse, or any other evidence in the case, tend to show the existence in the mind of the prisoner of a motive or passion which would render the commission of, or an attempt to commit, a rape upon Josie Langmaid more probable than it would otherwise seem to you? Does it or not tend to show that such a lustful intent existed in the heart of the prisoner at the time as would render the commission of a rape more probable? Does this evidence supply a motive for the commission of the offence?

“ The crime committed upon Julienne Rousse was four years and more antecedent to the offence under consideration. Since that time a change may have taken place in his mind. There has been time for repentance, and the lustful disposition he bore then may have been eradicated. The more remote the evidence of this mental condition, the less force and weight belong to it.

“But in connection with this part of your inquiry, i. e. concerning the present intention, and whether a lustful disposition still remained in the prisoner's heart, you may consider the evidence of Adin G. Fowler, of the prisoner's inquiry on three different occasions concerning Fowler's sister, and where she went to school, and the road she took to get there (within a fortnight of the murder); of young Mahair concerning Sarah Prentice

- the way she travelled, and the obscene remark concerning her; of Mrs. Watson, her daughter Anna, and Matthias Mercy, concerning his pursuit of Anna, about two weeks before the murder.

" And here it is proper to remark, that if the prisoner killed Josie Langmaid, it is not at all necessary that any lustful desire or any animosity toward her in particular should be shown, provided she became the victim of his lustful and murderous intent. If the intent to commit rape and murder upon some one else, or upon any girl whom by chance he might encounter, was consummated in an attack upon Josie Langmaid, the indictment is sustained.”

No exceptions were taken to the charge.

The respondent was convicted of murder in the first degree, and sentenced to be hanged.

The respondent tendered this bill of exceptions, which was allowed ; VOL. IV.

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