State v. Bey

• Decision Date: 20 January 1965
• Parties: STATE of Maine v. Ronald BEY.
• Court: Maine Supreme Court

Page 413

206 A.2d 413

161 Me. 23

STATE of Maine v. Ronald BEY.

Supreme Judicial Court of Maine.

Jan. 20, 1965.

Foahd Saliem, Asst. County Atty., Kennebec County, Augusta, for the state.

Robert Martin, Augusta, Philip S. Bird, Waterville, for defendant.

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

MARDEN, Justice.

On exceptions.

A jury found the appellant guilty of assault and battery. The presiding justice found that the assault and battery was of a high and aggravated nature and sentenced accordingly.

Appellant purports to come to this court on exceptions and appeal. He assigns as exceptions:

1. That the verdict was against the evidence.

2. That the verdict was against the weight of the evidence, and

3. That the finding by the presiding justice that the offense was of a high and aggravated nature, was erroneous as a matter of law.

The record indicates, and indeed counsel concedes, that no exceptions were reserved during the trial. No motion for a new trial was presented to the trial court.

The common law provided no appeal, and access to this court for review of exceptions as to matters of law and the record as to matters of fact, is gained only by provisions of the statute. Sears, Roebuck & Co. v. City of Portland et al., 144 Me. 250, 254, 68 A.2d 12; R.S.1954, Chapter 103, § 15 and Supplement; R.S.1954, Chapter 106, § 14 and Supplement; R.S.1954 Chapter 148, § 30 and Supplement, and see 'Some Suggestions on Taking a Case to the Law Court' by the late Chief Justice, Edward F. Merrill as printed in 1951 Proceedings Maine Bar Association.

The insufficiency of evidence to support this verdict is not reviewable by the exceptions here expressed. There was no denial by the presiding justice of a motion by the accused for a directed verdict upon which an exception could be reserved. State v. Navarro, 131 Me. 345, 347, 163 A. 103. There was no denial by the presiding justice of a motion by the respondent for a new trial due to alleged lack of evidence and denial of that motion upon which an appeal could be founded. State v. Sutkus, 134 Me. 100, 101, 182 A. 15. There was no basis established in the present case for an appeal.

While no exception was reserved on the legality of the trial court's determination that the assault and battery of which the appellant was found guilty was of a high and aggravated nature, such ruling may be attacked by exception and the allowance by the trial court of an exception upon this point, we accept as conclusive. Carey v. Bourque-Lanigan Post No. 5, The American Legion et al., 149 Me. 390, 394, 102 A.2d 860. The only point before us for review is upon that exception.

We have, however, studied the record and the procedural lapse which forecloses exceptant from a review of the facts upon which his conviction is found is of no prejudice to him. The verdict of guilt on assault and battery came from dispute of fact supplied by a number of witnesses and in the light of all the evidence the jury was warranted in believing beyond a reasonable doubt that the accused was guilty. State v. Bernatchez, 159 Me. 384, 193 A.2d 436.

The prosecution of the exception is in reality an 'appeal' from the sentence imposed.

A discussion of the offense of assault and battery as defined in R.S., Chapter 130, § 21 ¹ will serve only to update the case law on the subject. Rell v. State, 136 Me. 322, 9 A.2d 129, 125 A.L.R. 602; and State v. McKrackern, 141 Me. 194, 41 A.2d 817, establish the law controlling the present case. Our statute does not create an offense of aggravated assault whereby an aggravated assault must be defined. At common law there were, and are, no degrees of the offense of assault and battery. The term aggravated assault had, and has, no technical meaning. There was, and is, but one grade of the offense and the penalty varies according to the discretion of the court. '(F)rom early times, * * * it has been the judicial habit to look upon assaults as more or less aggravated by such attendant facts as appealed to the discretion for a heavy penalty.' Rell, 136 Me. at 325, 9 A.2d at 130. Whether an assault and battery shall be punished as of a high and aggravated character depends upon the proof. The offensive conduct may constitute a misdemeanor or a felony.

The 'facts which establish that the offense is or is not of a high and aggravated nature go only to the measure of punishment * * *.' McKrackern, 141 Me. at 207, 41 A.2d at 822.

We do not understand the exceptant to urge that Rell and McKrackern have not established the law, but that a definition of assault and battery of a high and aggravated nature should be established as a matter of judicial policy whereby the trial court may have definitive bounds within which to...