State v. Bennett

• Decision Date: 19 February 1918
• Citation: 117 Me. 113,102 A. 974
• Parties: STATE. v. BENNETT.
• Court: Maine Supreme Court

102 A. 974

117 Me. 113

STATE.

v. BENNETT.

Supreme Judicial Court of Maine.

Feb. 19, 1918.

Exceptions from Supreme Judicial Court, Hancock County. Robert H. Bennett was convicted of an offense, and he brings exceptions. Overruled. Judgment for the State.

Argued before CORNISH, C. J., and SPEAR, KING, PHILBROOK, and MADIGAN, JJ.

Fred L. Mason, Co. Atty., of Ellsworth, and Deasy & Lynam, of Bar Harbor, for the State.

P. H. Gillin, of Bangor, D. E. Hurley, of Ellsworth, and E N. Benson, of Bar Harbor, for respondent.

PHILBROOK, J. This cause originated by complaint and warrant issued from the Ellsworth municipal court, came by appeal to the Supreme Judicial Court, was there tried before a jury, and the respondent found guilty.

Thereupon exceptions were filed and allowed. Those exceptions were two in number; the first being based upon the allowance, by the presiding justice, of an attorney other than the county attorney "to take part in the trial of said cause, to cross-examine the respondents' witnesses, and to argue the cause to the jury," and the second being based upon the admission of the testimony of a certain witness.

The bill of exceptions claims that the other attorney was "allowed to appear as counsel for the state" at the request of the county attorney.

R. S. c. 84, § 18, provides that:

"The county attorney shall attend all criminal terms held in his county, and act for the state in all cases in which the state or county, is a party or interested. * * *"

Section 21 of the same chapter provides that:

"When he does not attend a criminal session, or the office is vacant, the court may appoint an attorney to perform his duties during the session."

The evidence discloses that the county attorney, for the county in which the cause was tried, was present, taking an active part in the trial.

The respondent cites State v. Reed, 67 Me. 127; but that case was decisive only of the necessity, or otherwise, of signature of an indictment by the county attorney, and has no bearing here. He also cites State v. Clough, 49 Me. 573, which related only to the validity of an indictment returned by a grand jury, some of the members of which it was found were not legally drawn, and is equally inapplicable. The only other case cited in respondent's brief is Rounds, Petitioner, v. Smart, 71 Me. 380; but that can have no bearing upon this case, as it was a discussion of the act of 1880, which provided to persons, claiming to be elected to the office of county attorney, a more summary and inexpensive remedy to try title to the office than those provided by quo warranto and mandamus.

On the other hand, the precise point in controversy was settled by this court half a century ago, and the rule then established has not been reversed. In State v. Bartlett, 55 Me. 200, that rule was thus stated:

"When it appears to the court that such facts and circumstances exist that the public interest requires that the state's attorney have the aid of some counselor of the court in the trial of the cause, the court will appoint such person as may seem to them best fitted under the circumstances to aid in the promotion of justice."

In the same opinion the court further says: "The. selection and appointment of such persons lies in the discretion of the presiding judge. * * * The exercise of this power is" not the subject of exception unless it infringes some rule of law. The needs and...