State v. Bennett

• Decision Date: 30 March 1962
• Citation: 158 Me. 109,179 A.2d 812
• Parties: STATE of Maine v. Otto BENNETT.
• Court: Maine Supreme Court

Page 812

179 A.2d 812

158 Me. 109

STATE of Maine v. Otto BENNETT.

Supreme Judicial Court of Maine.

March 30, 1962.

Peter Sulides, Co. Atty., Rockland, for plaintiff.

A. Alan Grossman, John L. Knight, Rockland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD, and SIDDALL, JJ.

SULLIVAN, Justice.

Respondent was accused by indictment of having carnally known a female child of eleven years in contravention of R.S. c. 130, § 10. During his trial by jury respondent excepted to several judicial rulings. The verdict was guilty and respondent now prosecutes his exceptions.

Exception 14

At the close of all evidence the respondent unsuccessfully moved for a directed verdict.

The principles applicable and controlling upon this issue are well established:

'To the refusal of the justice to direct a verdict of not guilty, upon the grounds suggested, the respondent excepted, and these exceptions were filed and allowed. The only issue raised by the exceptions is whether there was sufficient evidence to warrant the jury in rendering a verdict of guilty. * * * If the jury had believed the defendant, their verdict should have been in his favor. If they did not believe him, then there was ample testimony to sustain the verdict which they rendered.' State v. Clancy, 121 Me. 362, 363, 364, 117 A. 304, 305.

'* * * Although corroboration of her (prosecutrix's) testimony was not necessary * * *.' State v. Morin, 149 Me. 279, 281, 100 A.2d 657, 658.

'Corroboration beyond the testimony of the prosecutrix is not required under our law to prove the crime of rape. In the absence of corroboration, the testimony of the prosecutrix must be scrutinized and analyzed with great care. If the testimony is contradictory, or unreasonable, or incredible, it does not form sufficient support for a verdict of guilty. * * *' State v. Field, 157 Me. 71, 76, 170 A.2d 167, 169.

Inferentially there were no observers of the crime with which the prosecutrix charged this respondent. The child narrated the consummated event and circumstances and identified the respondnt as the violator. No spiteful or malicious motive of the girl seems to have been discoverable. Collateral real evidence and ancillary testimony of witnesses were credible, of unusual quantity and amply sufficient when believed to verify the wrong imputed. Occasion and opportunity, personal relationship, a medical examination of the victim, an expertly analyzed bloodstain, prosecutrix's blood test and grouping, communicated writings in a code known to both principals, depraved and pertinent utterances attributed to the respondent by listeners constitute some of the corroborative proof which the jury was justified in concluding to be trustworthy and authentic. The respondent roundly asserted his innocence and in addition to his voiced denials, distinctions and refutations supplied some medical testimony which would have made possible at least the conclusion that respondent had been physically incapable of the offense. But real and spoken evidence and their advantage in observing the principals and witnesses completely vindicate the jurors in their verdict of guilt beyond a reasonable doubt.

There was no error in the refusal to direct a verdict of not guilty. State v. Allen, 151 Me. 486, 490, 121 A.2d 342.

Exception 1.

The child prosecutrix was asked a pertinent question which respondent's counsel challenged as leading. The presiding Justice in his discretion permitted an answer. The witness was a girl of 12 years at the time of trial. Wigmore on Evidence, 3rd ed., Vol. 111, § 778. The examination was no doubt thus 'made more brief and pertinent' and the action of the Justice is not exceptionable. Blanchard v. Hodgkins, 62 Me. 119, 120; Harriman v. Sanger, 67 Me. 442, 444.

Exceptions 2, 3, 4, and 5.

The prosecutrix in redirect examination was interrogated against objection as to whether she had directed the attention of anybody to a bloodstain. Defense protested that the inquiry should have been earlier addressed in direct examination. The Justice administering the trial had discretionary authority to permit such questioning by special leave. Main Criminal Rules, 5, 155 Me. 645.

Exception 6.

Defendant challenged the propriety of a question designed to reveal the identity of a chattel in a photograph taken a year or more after the asserted crime. Defense was overruled.

The order of proof to demonstrate fact is within the bounds of sound judicial discretion. Billings v. Inhab. of Monmouth, 72 Me. 174, 177. Later considerable evidence was supplied by the State to justify a jury finding that the chattel photographed had not changed appreciably in condition or status from the date of the imputed crime to the time of the photographing. The respondent in fact subsequently placed in evidence 8 photographs of the same object, taken by the same person and at the same time.

Exception 7.

A wooden board containing a bloodstain had been detached by the State from a 'hen nest' or coop and was offered in evidence as a relevant property in the perpetration of the alleged offense. Defense disputed the admissibility of the exhibit because of the elapsing of a year since the event the board purportedly evidenced, because the pathologist had only succeeded in confirming a general grouping of A for the blood comprising the stain and had been unable to assign any definite age to the blood except an assurance that it was more than a week, because expert testimony revealed that 44% or 45% of the American population has A blood and persons other than the prosecutrix had had access to the hen nest, because the board had not been reaffixed to the rest of the hen nest which had already been admitted in evidence and because some cleats had been somewhat displaced from their original positions upon the coop.

The board and its blood stain stood in a milieu of connected circumstances. The constant situation of the board from September, 1959 until trial, its unchanged condition throughout and the position of the board prior to its severance from the coop had been detailed in evidence to the jury. The stain was of blood group A. The prosecutrix had been determined by a testifying medical laboratory technician to possess type A, RH positive blood. During several months subsequent to September, 1959 and during the course of his employment by the father of the prosecutrix respondent had an almost daily occasion to observe and utilize the hen nest in his work. The hen nest save for the controversial board had already been admitted in evidence. The prosecutrix had related that the board had constituted part of the plane surface upon which the crime had been enacted and had sworn that her blood had stained the board's top side. The relation of the board to the trial issue had become by an aggregation of circumstances qualified for jury consideration. That decision was the well-acquitted duty and responsibility of the presiding Justice.

'Whether the evidence of the witness was too remote, was within the discretion of the presiding judge. Ferron v. King, 210 Mass. 75, 96 N.E. 52. Discretion does not appear to have been exercised wrongly. An excepting party, to have...