State v. Cady

• Decision Date: 08 March 1890
• Citation: 19 A. 908,82 Me. 426
• Parties: STATE v. CADY.
• Court: Maine Supreme Court

19 A. 908

82 Me. 426

STATE

v. CADY.

Supreme Judicial Court of Maine.

March 8, 1890.

Exceptions from superior court, Cumberland county.

The respondent was indicted at the May term, 1889, in the superior court for Cumberland county, for keeping and maintaining a liquor nuisance on the corner of Danforth street and Sisk lane, in Portland. The officers testified that the place was fitted up with the usual appliances for a bar, and that they had found tumblers on the counter smelling strong of whisky, with some drainings in them. In the cellar was found a box of lager-beer. Three officers testified to seeing the defendant there at different times, and at one time he shut the door quickly in the officer's face, and undertook to bar him out. At another time, Cady was found alone in the bar room.

The defendant put in no testimony, but asked the court to instruct the jury that there was not sufficient evidence to support the indictment, and their verdict should be "Not guilty." The court refused to so instruct, and directed the case to proceed. The counsel for defendant then argued the case to the jury, and the verdict was "Guilty."

The defendant excepted to this refusal of the court to rule as requested. The defendant also moved in arrest of judgment for insufficiency of the indictment. This motion was overruled by the court, and the defendant excepted. No copy of the indictment appears in the bill of exceptions.

Frank W. Robinson, for the state. W. H. Looney and Geo. M. Seiders, for defendant.

WALTON, J. When the evidence in support of a criminal prosecution is so defective or so weak that a verdict of guilty based upon it cannot be sustained, the jury should be instructed to return a verdict of not guilty. Such a case arises when there is a material variance between the allegations and the proof, as when one is indicted for stealing a black horse, and the proof is that he stole a white one; or when one is indicted for maintaining a nuisance in one place, and the proof is that he kept a nuisance in another and an entirely different place; or when there is a total want of evidence to support some material allegation, or the evidence in support of it is so slight that a verdict based upon it could not be allowed to stand. In all such cases, it would undoubtedly be the duty of the court to instruct the jury to return a verdict of not guilty; and a refusal to so instruct them would be a valid ground of exception.

But we do not regard the case now before...