Kaye v. Keeper of the Jail

• Decision Date: 06 April 1950
• Parties: KAYE v. KEEPER OF THE JAIL. KAYE v. STATE.
• Court: Maine Supreme Court

Page 811

72 A.2d 811

145 Me. 103

KAYE v. KEEPER OF THE JAIL.

KAYE v. STATE.

Supreme Judicial Court of Maine.

April 6, 1950.

Milton A. Nixon, Portland, for petitioner and plaintiff, Harry kaye.

Daniel C. McDonald, County Attorney for Cumberland County and State of Maine, Portland, Arthur Chapman, Jr., Assistant County Attorney for Cumberland County and State of Maine, Portland, for Keeper of the Jail, Philip M. Dearborn, and for the State of Maine.

Before MURCHIE, C. J., THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

WILLIAMSON, Justice.

Harry Kaye, the petitioner for writ of habeas corpus and the plaintiff in error, seeks his release from the County Jail where he is now serving a six month's sentence. The cases arise on report with an agreed statement of facts.

On a complaint and warrant charging Kaye with larceny of a horse of the value of $400, 'probable cause' was found in the Portland Municipal Court. After a plea of not guilty and examination, described in the agreed statement as 'a full hearing upon said warrant before the Court with both the State and the defendant producing testimony and evidence thereon', Kaye was 'bound over to the September Term of the Superior Court' and gave the bail required by the magistrate.

In the Superior Court Kaye was indicted for the identical offense set forth in the complaint and warrant, pleaded not guilty, was tried, and found by the jury to be 'guilty of misdemeanor'. Judgment of six months' sentence in the County Jail was rendered on the verdict.

On the writ of error we are limited to consideration of the record. Nissenbaum v. State of Maine, 1938, 135 Me. 393, 197 A. 915. The issue is whether the recorded verdict of 'guilty of misdemeanor' fairly and fully describes the offense of which Kaye was found guilty and on which the judgment was rendered.

Larceny is defined in R.S.1944, c. 119, § 1. If the value of the property, which is the subject of the larceny, is found to exceed $100, the crime is punishable by imprisonment in the state prison. Such crime, commonly known as grand larceny, is a felony. If the value of the property does not exceed $100, the crime is not so punishable. Such crime, commonly known as petit larceny, is a misdemeanor.

What meaning can the words 'guilty of misdemeanor', taken in the setting of the indictment and trial, have other than that the jury found Kaye guilty of larceny and the horse was of a value not exceeding $100? The record is clear and unmistakable to one who reads with care and understanding.

In the habeas corpus proceedings, Kaye contends that a finding of 'probable cause' of grand larceny included a finding of 'not guilty' of petit larceny, and that by the verdict he has been placed for a second time in jeopardy for petit larceny. For this purpose, he accepts the jury verdict as a finding that the horse was a subject for petit but not for grand larceny.

The petitioner is not entitled of right to consideration of the issue of former jeopardy on habeas corpus. 25 Am.Jur. 182; 39 C.J.S., Habeas Corpus, § 223, p. 474. Indeed there is no record that the issue of former jeopardy was raised at any stage of the trial or at the time of sentence.

In Clawans v. Rives, 1939, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436, cited by the petitioner, and in Ex parte Nielsen, Petitioner, 1889, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, cited in the Clawans case, the issue of former jeopardy, held to be properly raised on habeas corpus proceedings, had as well been presented below. For illustrative cases on the proper procedure in case of former jeopardy see State v. Barnes, 1851, 32 Me. 530, at page 534; State v. Houlehan, 1912, 109 Me. 281, 83 A. 1106; State v. Slorah, 1919, 118 Me. 203, 106 A. 768, 4 A.L.R. 1256; State v. Cohen, 1926, 125 Me. 457, 134 A. 627; State v. Shannon...