State v. Bobb

• Decision Date: 14 February 1942
• Citation: 25 A.2d 229
• Parties: STATE v. BOBB.
• Court: Maine Supreme Court

25 A.2d 229

STATE

v. BOBB.

Supreme Judicial Court of Maine.

Feb. 14, 1942.

Exceptions from Superior Court, York County.

Edwin Bobb was convicted of assault with dangerous weapon with intent to kill, and he brings exceptions.

Exceptions overruled and judgment for the state.

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

Joseph E. Harvey and Harold D. Carroll, both of Biddeford, for the State.

Hayden C. Covington, of Brooklyn, N. Y., Clarence Scott, of Old Town, and Charles W. Smith, of Biddeford, for respondent.

MANSER, Justice.

The respondent was tried upon a joint indictment against him and four other respondents, charging them with assault with a dangerous weapon with intent to kill one Dwight Robinson.

At the close of the evidence, a directed verdict of not guilty was returned as to the other four respondents. No exceptions were reserved to the charge of the presiding Justice. Counsel for the respondents submitted in writing eighteen requests for instructions to the jury, all of which were substantially given, and counsel were afforded opportunity for further requests. A verdict of guilty was returned.

By a bill of exceptions the respondent undertakes to challenge the action of the Court in the following matters:

1. Denial of motion for change of venue.

2. Denial of petition for removal of cause to United States District Court.

3. Denial of motion for severance and for separate trial.

4. Denial of motion for continuance. 5-10, inclusive. Exceptions to exclusion or admission of testimony of certain witnesses.

11, 12. Exceptions to exclusion of certain exhibits offered.

13. Exception to denial of motion for instructed verdict.

14. Exception to denial of motion for new trial after verdict.

Exceptions 4-10, inclusive, were not argued or briefed, and counsel for the respondent having informed the Court that they were not relied upon, they are regarded as abandoned.

It becomes necessary to determine whether the procedure employed by exceptions 13 and 14 is effectual to bring forward for consideration the fundamental question of whether the evidence and the law of the case warranted conviction of the respondent.

At common law, the granting of a new trial in criminal cases rested wholly within the discretion of the presiding Justice. In 1909, P.L., c. 184, the Legislature created a right of appeal in felony cases from the denial by the presiding Justice of a motion for new trial after verdict. This statute is now embodied in R.S., c. 146, § 27. In misdemeanors no appeal is provided and the decision of the presiding Justice remains final. Here we have a felony case, but the procedure authorized and controlled by statute is by "appeal" from the decision of the presiding Justice, not by "exception" to his ruling. Consequently, this Court is without jurisdiction to review a motion for new trial after verdict on exceptions to the refusal of the trial Judge to grant such motion. State v. Kennison, 131 Me. 494, 160 A. 201.

No appeal having been taken, there arises the question whether the respondent may rely upon his exception to the refusal to direct a verdict. This method, judicially sanctioned, accomplished the result of obtaining a review by the Law Court. State v. Simpson, 113 Me. 27, 92 A. 898; State v. Bakerwicz, 119 Me. 122, 109 A. 392; State v. Lamont, 129 Me. 73, 149 A. 629.

But in State v. Simpson, supra, in which the respondent was charged with a misdemeanor, it was held that, if both methods were used, the last was a waiver of the first. The reason for this was that the exception to refusal of the presiding Justice to direct a verdict brought the case to the Law Court to obtain its decision as to the sufficiency of the evidence. If, however, respondent after verdict presented a motion for a new trial to the presiding Justice, he thereby submitted the same question to the final determination of the trial judge, and it would be inconsistent to have a question thus finally adjudicated later passed upon and decided by a separate and distinct tribunal. This rule of waiver has been affirmed in State v. Power, 123 Me. 223, 122 A. 572, involving misdemeanor; State v. DiPietrantonio, 119 Me. 18, 109 A. 186; State v. O'Donnell, 131 Me. 294, 161 A. 802, and State v. Davis, 116 Me. 260, 101 A. 208, all felony cases. Upon careful consideration, it now appears to the Court that the reason for the rule as originally stated in the misdemeanor case of State v. Simpson, supra, does not obtain in felony cases. The statute, R.S., c. 146, § 27, by its fiat says that the decision of the presiding Justice in felony cases on a motion for a new trial is not final and that respondent may, by appeal, submit the question to the Law Court. Exceptions to refusal of directed verdict accomplish precisely the same result. Therefore, in felonies, two methods are available to bring the issue to the attention of the appellate tribunal. Both are not necessary. It should not follow, however, that if there be error in perfecting the second method, it is fatal to the first.

It is now expressly held that the doctrine of waiver under such circumstances does not apply in felony cases. This effects a change in a rule of procedure. It may be noted, however, that the Court has never allowed a failure to comply with the former rule as laid down in State v Power, supra, State v. DiPietrantonio, supra, State v. O'Donnell, supra, and State v. Davis, supra, to affect the rights of a respondent but has repeatedly considered the evidence to determine whether injustice would result therefrom.

It may be further noted in the opinion in State v. Simpson, supra [113 Me. 27, 92 A. 899], the Court adverted to another rule announced in four early Maine cases but which has long since been modified with judicial sanction in felony cases. The statement reads: "This court has frequently held both in criminal and civil cases that the prosecution of a motion for new trial before the presiding justice is a waiver of all rights of exception," citing State v. Call, 14 Me. 421; Cole v. Bruce, 32 Me. 512; Dinsmore v. Weston, 33 Me. 256; Ellis v. Warren, 35 Me. 125. The last cited case was decided in 1852. Since the granting of appeals in all felony cases, however, it has become established practice for the court to consider felony cases on both appeal and exceptions. Instances are found in State v. Friel, 107 Me. 536, 80 A. 1134; State v. Albanes, alias Joe Bill, 109 Me. 199, 83 A. 548; State v. Howard, 117 Me. 69, 102 A. 743; State v. Brown, 118 Me. 164, 106 A. 429; State v. Mulkern, 118 Me. 477, 105 A. 177; State v. Sanborn, 120 Me. 170, 113 A. 54; State v. Dodge, 124 Me. 243, 127 A. 899; State v. Rogers, 125 Me. 515, 132 A. 521; State v. Wright, 128 Me. 404, 148 A. 141; State v. Morin, 131 Me. 349, 163 A. 102; State v. Dorathy, 132 Me. 291, 170 A. 506; State v. Mosley, 133 Me. 168, 175 A. 307; State v. Cloutier, 134 Me. 269, 186 A. 604; State v. Sprague, 135 Me. 470, 199 A. 705; State v. Merry, 136 Me. 243, 8 A.2d 143.

In conformity to the rule as now adopted, the record has been carefully reviewed.

The picture presented is that of the activities and experiences of a group or sect, of which the respondent was one, known as Jehovah's Witnesses. The situation, developed largely in recital by the defense, was, in effect, that the group first made its headquarters in Saco, Maine. The nature of the work carried on was the distribution of literature and magazines, house to house calls, with the playing of phonograph records and electrical transcriptions, and general dissemination of tenets and principles. In addition, there were study periods and conferences, meetings of workers and public gatherings. In Saco and later in Kennebunk, large signs were displayed upon the headquarters building, "Kingdom Hall of Jehovah's Witnesses", "Religion is a Snare and a Racket."

It became apparent that the methods used and the doctrines expounded met the disapprobation of some citizens, and aroused the ire of some members of the American Legion with particular reference to the attitude of the sect as to saluting the flag. It was asserted that the meeting place was subjected to acts of violence, including the throwing of rocks and defacement of the building, and that efforts were made to terrorize the group by threats of personal violence. It was claimed that repeated requests for police protection met with little favorable response. After some months, other headquarters were secured in an old building in Kennebunk, Maine, about ten miles from Saco. Here, comparative quiet existed for a short time, but again the fervor or militancy of the group aroused disfavor, and there were similar experiences as to the place of meeting and as to threats against the group. In addition, it was claimed that for a number of days several cars circulated around the building at various times with accompanying threats from the occupants. On Memorial Day there was a further demonstration. It was not shown that the individuals who composed the group at Kennebunk were personally assaulted, with one exception. The wife of the respondent claimed that on one occasion literature in her hands was wrested from her and torn up. The group consisted of both men and women and they met almost every evening in the headquarters. Upon their insistent demand to local, county and State police authorities, the locality was at times patrolled, and this had the temporary effect of dispersing the crowd. It was claimed warning was received by the group that, on the evening of Saturday, June 8, 1940, serious trouble might be expected. A number of the men thereupon brought shot guns, rifles and ammunition to the building. Several of the men were stationed at various points about the grounds in the vicinity, where their own persons were not exposed, and some of them were provided with loaded guns. Notwithstanding the warning, a number of women of the sect came to and remained in...