State v. Berube

• Decision Date: 09 May 1942
• Citation: 26 A.2d 654
• Parties: STATE v. BERUBE.
• Court: Maine Supreme Court

26 A.2d 654

STATE

v. BERUBE.

Supreme Judicial Court of Maine.

May 9, 1942.

Exceptions from Superior Court, York County; Albert Beliveau, Judge.

William Berube was convicted of taking indecent liberty with a female minor, and he brings exceptions.

Exceptions overruled.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Harold D. Carroll, Co. Atty., of Biddeford, for the State.

Armstrong & Spill, by Richard H. Armstrong, all of Biddeford, and Merle C. Rideout, Jr., all of Biddeford, for respondent.

MURCHIE, Justice.

This case comes to the Court on exceptions by a respondent convicted in the Superior Court under an indictment charging a. violation of the provisions of Section 6 of Chapter 135 of the Revised Statutes. The exceptions requiring consideration relate to the admission of two items of testimony against the objection of the respondent and to the exclusion of four items of testimony offered in his behalf. Exception in each case was properly taken and allowed.

In addition to these exceptions, counsel for the respondent noted an exception to the action of the justice in the Trial Court in denying a motion for a new trial. The hill of exceptions recites that "an application for appeal" was made a part of the bill of exceptions, but neither the record, nor the docket entries which are a part of it, shows that an appeal was taken.

The requirements of proper practice have been so frequently stated in this regard that it seems unnecessary to do more than call attention to the very complete review of Mr. Justice Wilson in State v. Dodge, 124 Me. 243, 127 A. 899, and note that the only machinery provided by statute to carry the denial of a motion for new trial to this Court for review is by appeal. R.S.(1930), Chap. 146, Sec. 27. In the absence of such an appeal, denial in the Trial Court represents final adjudication upon all the allegations of the motion. The issue before this Court involves only the question as to whether any evidence was improperly admitted or excluded.

The respondent complains as to the admission of testimony that the female minor named in the indictment was permitted, over objection, to testify to acts of earlier happening between the parties, similar to the offense charged, and relies upon State v. Acheson, 91 Me. 240, 39 A. 570. The principle declared in that case is not applicable to the present. There evidence of offenses similar to the one charged was admitted, not for the purpose of showing intent or relationship between the parties, but as proof of such other substantive offenses, upon the express condition, declared by the Court, that the prosecution would be required, before the case was submitted to the jury, to elect which one of the several offenses covered by the testimony was being prosecuted. Decision hinged upon an exception to the charge alleging that it was inadequate and misleading in view of the absence of election and the fact that testimony about four independent acts of assault, committed on different dates, had been introduced. In the instant case we have no exception to the charge nor could one have been taken, since the testimony was admitted only for the purpose of showing the relationship between the parties, for which it was entirely proper. State v. Witham, 72 Me. 531; State v. Williams, 76 Me. 480; State v. Bennett, 117 Me. 113, 102 A. 974; State v. Buckwald, 117 Me. 344, 104 A. 520; State v. Morin, 126 Me. 136, 136 A. 808. In point of fact the danger of misapprehension was eliminated by a special instruction given to the jury after consultation with counsel to the effect that respondent was not being tried "upon what occurred before the offense complained of" in the indictment.

As to the second item of admitted testimony of which the respondent complains, the County Attorney was permitted, against objection, to interrogate the respondent in cross-examination as to whether or not he had told the chief of police about (1) having other little girls go to his home, and (2) paying money to such other little girls. It is sufficient answer to the exception that neither of the replies elicited any admission from the respondent which could have operated to prejudice him, but it may be noted also that direct testimony had already been given on both points by the witness referred to and that no objection was interposed when the evidence was first introduced into the case.

As to the exclusion of evidence, the respondent complains that he was not permitted to interrogate (1) the female minor to whom the offense charged relates, and who testified for the State, as to trouble between her mother and the respondent, (2) one presumably disinterested witness, who testified for the defense, as to unusual noises or anything else in connection with the respondent, or his tenement, at the approximate time the offense is alleged to have been committed, (3) another presumably disinterested defense witness as to whether threats had been made against the respondent by said mother, and (4) to introduce a copy of a complaint and warrant issued from the Municipal Court charging the respondent with a different...