State v. Brown.

• Decision Date: 08 January 1946
• Citation: 45 A.2d 442
• Parties: STATE v. BROWN.
• Court: Maine Supreme Court

45 A.2d 442

STATE

v.BROWN.

Supreme Judicial Court of Maine.

Jan. 8, 1946.

Motion for New Trial and Exceptions from Superior Court, Kennebec County.

Royden V. Brown was convicted of the offense of taking indecent liberties with sexual parts of a male child under 16 years of age, and from a denial by presiding justice of his motion for a new trial, he appeals and brings exceptions.

Exceptions sustained and new trial granted.

Henry Heselton, Co. Atty., of Gardiner, and Abraham Breitbard, Deputy Atty. Gen., of Portland, for the State.

Burleigh Martin, of Augusta, and F. Harold Dubord, of Waterville, for defendant.

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

THAXTER, Justice.

The respondent was indicted for a violation of the provisions of Rev.Stat.1944, Ch. 121, Sec. 6, in that, being more than twenty-one years of age, he took indecent liberties with the sexual parts or organs of one John N. McAuley, Jr., a male child under the age of sixteen years. On a trial before a jury in the Superior Court he was convicted, and the case is before us on an appeal from a denial by the presiding justice of his motion for a new trial and on exceptions. It is unnecessary to consider the appeal, for the exceptions must be sustained.

The exceptions are to the overruling by the presiding justice of a motion in arrest of judgment, to the exclusion of certain evidence, to a portion of the charge as given, to the failure of the presiding justice in his charge to digest the defense testimony in as great detail as he had digested the evidence for the state, and to the refusal to give certain requested instructions.

The motion in arrest of judgment is without merit and was properly overruled. The only objection to the indictment brought up by the motion and now insisted on is that the indictment does not contain an allegation that the respondent committed an assault on the said John N. McAuley, Jr. An assault is not, however, a necessary element of the offense, and accordingly such an allegation in the indictment was not required.

It is not necessary to consider the exceptions to the exclusion of evidence or to the portion of the charge complained of.

There is considerable force in the respondent's complaint that the summation of the evidence by the presiding justice was one-sided in that attention was called unduly to the testimony favorable to the state and but little comment was made on that of the respondent. The law is well settled that, if a trial judge sees fit to summarize the evidence for a jury's benefit, he must do so with strict impartiality and must not ‘magnify the importance of the proofs on one side and belittle those on the other. * * *’ Com. v. Colandro, 231 Pa. 343, 356, 80 A. 571, 576; Com. v. Westley, 300 Pa. 16, 150 A. 94; Com. v. Karmendi, 325 Pa. 63, 188 A. 752; 23 C.J.S., Criminal Law, § 1308, p. 896 et seq. In a case of this kind where, because of the nature of the offense charged, resentment is apt to run high, where there is likely to be indignation in a community against the accused, a heavy responsibility rests upon a judge to see to it that the members of a jury are in a temperate frame of mind and that they consider the evidence offered impartially and without bias toward a respondent. To that end it is more than ever essential, if the evidence for the state is summarized, that the evidence for the respondent and its bearing on the issue should be given equal consideration.

In this case the only direct evidence was that of the young boy who was the victim of the advances claimed to have been made by the respondent. He testified that as the respondent passed in the early evening with his wife along the lower corridor of the State House and by the open door of a room which had been used as a kitchen, which was dark except for such light as came from the corridor, the respondent lured him into this room on a pretense and there committed the offense. If such were the fact, the wife obviously continued on her way, and the state offered evidence of the operator of the elevator that on the evening in question she rode alone in the elevator to the floor on which the respondent's office was located. The respondent, according to the elevator operator, followed shortly afterwards. Whatever happened was over in a very few minutes. The respondent continued with his duties for three days as secretary of the senate which was then in session, when he was called to the office of the attorney general and there placed under arrest. Testimony of Captain Young of the state police and of the sheriff of the county was offered of the conversations which they had with him there. There is no evidence and no claim is made that what he there said was not voluntary. The interpretation to be put on certain of the admissions which he made to the officers depends very largely on the weight which the trier of the facts would give to the testimony of the boy. In one aspect what he said to the officers might indicate guilt, in another innocence. It was, therefore, of the utmost importance that this evidence should have been weighed in its relation to the whole and not treated as isolated testimony supporting the charge. The evidence for the respondent was the testimony of himself and his wife. In view of the alleged circumstances, it was obviously all he had. He denied that he went into the abandoned kitchen with the boy or committed the act in question. He did admit giving the boy a friendly push as he passed by him. His wife says that she and her husband walked through the corridor together and took the elevator together to the upper floor, that he unlocked the door of his office for her, and that they went in there together. Obviously the whole case hinged on the proper evaluation by the jury of the testimony of the boy on the one hand and of the respondent and his wife on the other.

Such being the case, what does the charge say with reference to the testimony for the state and for the respondent?

In the first place, the court told the jury that the witnesses for the state ‘all of them’ had no choice but to testify, that they had to come and tell their story, that they stood ‘to gain or lose nothing by that action, one way or the other’. The judge comments on the great importance of the testimony of the boy. To the claim of the defense that it is untrue, the judge says: ‘If he is not telling the truth, why not? Well, defense counsel say it is not necessary to prove motive to show why a witness should lie. I think you probably, as reasonable men of good sound judgment would say, ‘Why should anyone lie if there is no reason for it?’' There is more in a similar vein later on. As to the boy's attitude on the stand, the judge again calls...