State v. Boynton.

• Decision Date: 22 October 1948
• Citation: 62 A.2d 182
• Parties: STATE v. BOYNTON.
• Court: Maine Supreme Court

62 A.2d 182

STATE

v.BOYNTON.

Supreme Judicial Court of Maine.

Oct. 22, 1948.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Superior Court, Penobscot County.

Frank A. Boynton was convicted of operating a motor vehicle upon a public way while under the influence of intoxicating liquor, and he brings exceptions.

Exceptions overruled, and judgment for the State.

John H. Needham, County Atty. for Penobscot County, of Bangor, for the State.

James D. Maxwell, of Bangor, for respondent.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS and MERRILL, JJ.

MERRILL, Justice.

This case is before the Court on exceptions by the respondent. The respondent was indicted at the January Term, 1948, of the Superior Court for Penobscot County for operating a motor vehicle on October 2, 1947, upon a public way in Brewer while under the influence of intoxicating liquor.

The indictment was returned on the ninth day of January, 1948, being the fourth day of said term, and on that day capias was issued. On the nineteenth day of the term, the respondent was arraigned upon the indictment and on the same day filed a plea to the jurisdiction. On the same day the State filed a general demurrer to the plea. The Court after hearing sustained the demurrer and overruled the plea, whereupon the respondent seasonably excepted to said ruling. Thereafterwards, on the same day, the respondent was ordered to plead over and proceed to trial and exceptions were filed to this ruling. The respondent entered a plea of not guilty, the case proceeded to trial and a verdict of guilty was rendered. After the charge of the Presiding Justice the respondent took exceptions to his refusal to give a requested instruction.

The case is now before this Court upon the respondent's exceptions to, (1) the sustaining of the demurrer and to the overruling of his plea to the jurisdiction, (2) the order of the Court that he plead over and proceed to trial, and (3) the refusal to give the requested instruction. The respondent at the time of argument in the Law Court not only did not urge his exception to the refusal to give the requested instruction but expressly waived the same. We therefore consider only the exceptions to (1) the sustaining of the demurrer to the plea to the jurisdiction, and the overruling of the plea, and (2) the exceptions to the order to plead over and proceed to trial. Decision upon the first exception is decisive of the second.

By his plea the defendant attacks the jurisdiction of the Superior Court to hear and try him upon the indictment on two grounds.

The first ground of attack is that at the time of the finding of the indictment there was still pending upon the docket of the Superior Court his appeal from a conviction before a Trial Justice for the same identical offense, and which appeal he says was in effect still pending at the time he was required to plead to, and when he was tried upon the indictment. Although the complaint and warrant in the appeal case had been quashed after the indictment was found and before the plea to the jurisdiction was filed, the respondent claims that this action was ineffectual; and that therefore, the appeal was still pending at the time he was required to plead over and proceed to trial upon the indictment.

In his plea, by appropriate allegations of fact, as well as by direct averment, the respondent sets forth that Edward F. Dow, the Trial Justice before whom he was tried and convicted, and from whose sentence he had appealed, had no jurisdiction, under the law as set forth in State v. Harnum, 143 Me. 133, 56 A.2d 449, to either hear the complaint or sentence him thereon.

The second ground of attack upon the jurisdiction of the Superior Court to hear and try the defendant upon the indictment is that the defendant was originally arrested, for the offense for which he was later convicted, without a warrant; that the officer not only unreasonably delayed, but in fact never obtained a legal warrant from or presented him for his trial thereon before a court of competent jurisdiction; that because of such unreasonable delay and failure he was not subject to indictment for the same offense and trial thereon in the Superior Court.

There is no merit in either of these objections to the jurisdiction of the Superior Court to hear and try him upon the indictment upon which he has been convicted and sentenced.

Although there are many exhibits which are made a part of the bill of exceptions none of them were set out in the plea nor made a part of the same by reference. In determining the exceptions to the sustaining of the demurrer to the plea and the overruling of the plea, we are confined to the plea as filed. We must take our facts from the plea as therein alleged, and being confessed by the demurrer we must accept them as true. The plea must stand or fall by its own strength. In dilatory pleas, and a plea to the jurisdiction is a dilatory plea, ‘every material fact’ necessary to its maintenance ‘must be clearly stated, and not left to inference or presumption. The court will take knowledge of an implication of law, but not of an inference of fact.’ State v. Ward, 64 Me., 545, 549.

The case of State v. Harnum, supra, is decisive of the proposition that if a Trial Justice assumes to take jurisdiction and convicts in a case over which he has no jurisdiction, and if there be an appeal from such conviction to the Superior Court, such original lack of jurisdiction carries through into the Superior Court and requires that the case be quashed in the Superior Court.

Even if the pendency of another prosecution is a bar to simultaneous prosecution subsquently instituted for the same offense in another court of concurrent jurisdiction (upon which question there is a conflict of authority, and upon which we need express no opinion) to constitute such bar the prior prosecution must be pending before a court of competent jurisdiction to determine the cause. Two courts cannot have concurrent jurisdiction when one of them is absolutely without jurisdiction. In this case the defendant's plea to the jurisdiction negatives all jurisdiction of the Superior Court in which it was pending to hear, try, or determine the respondent's pending appeal, as well as the jurisdiction of the Trial Justice who tried and convicted him in the first instance. Such want of jurisdiction is affirmatively shown in the plea both by direct allegation and by averment of facts which bring the case within the rules laid down in State v. Harnum, supra. It may be noted that the same Trial Justice acted in this case as in the Harnum case, and that the facts set forth in the plea in this case showing his lack of jurisdiction to hear and determine the case against this respondent are the same which were held to show his lack of jurisdiction in the Harnum case.

An appeal pending in the Superior Court from a conviction before a Trial Justice who had no jurisdiction to hear and determine the cause, is not a bar to a trial in the Superior Court for the same offense upon an indictment found and returned while such appeal is pending therein. This being true, the question as to whether the complaint and warrant were properly quashed in the Superior Court is of no importance, for if we should hold them to have been improperly quashed and therefore in legal effect still pending, the pending appeal which the Superior Court is without jurisdiction to hear and determine would not be a bar to trial upon the indictment for the same offense as that alleged in such complaint and warrant.

The second ground of attack upon the jurisdiction of the Superior Court to hear and try the respondent upon the indictment is based upon the fact that in the first instance the respondent was arrested without a warrant and that there was an unreasonable delay in obtaining a valid warrant from, and presenting the defendant for trial thereon before a court of competent jurisdiction prior to the convening of the Grand Jury on January 6th, which Grand Jury returned the indictment on January 9th. By the plea the defendant alleges, tho not by name, that the Harnum case, which it is alleged decided that Edward F. Dow had no jurisdiction to hear and try cases in Brewer, was decided by this Court December 26, 1947 and rescript therein was filed the 27th day of December. The plea further alleges ‘that from the 26th day of December, 1947, to the 6th day of January, 1948, being the day that the Grand Jury for the Superior Court for said County of Penobscot convened, was a period of eight days within which time the said officer who made said arrest could have obtained a warrant, but that the said police officer who made said arrest did not obtain a warrant within a reasonable time thereafter although said Bangor Municipal Court was in session every day from the 26th day of December, 1947, to the 6th day of January, 1948, and the said Harold A. Towle Esquire was available as a Trial Justice to hear and try said case.’ The plea by proper averments had previously stated that both the Bangor Municipal Court and Trial Justice Towle had jurisdiction to hear and determine the cause.

The situation of the plaintiff, so far as this ground of defense is concerned, according to the facts set forth in the plea may be summarized as follows: The respondent was arrested by an officer without a warrant, the next morning the officer obtained a warrant from Trial Justice Dow, who was authorized to issue the same. See State v. Harnum, supra [143 Me. --, 56 A.2d 450], where we stated ‘His authority to issue the warrant is undoubted. Any trial justice of the county had that authority.’ The officer then, instead of taking his prisoner before a court of competent jurisdiction, took him before Trial Justice Dow, who according to the allegations in the plea was without jurisdiction to determine the cause, and before whom trial and conviction was had and an appeal taken therefrom. On December 26th, 1947 the...