State v. Cohen

• Decision Date: 15 October 1926
• Parties: STATE v. COHEN.
• Court: Maine Supreme Court

134 A. 627

STATE

v. COHEN.

Supreme Judicial Court of Maine.

Oct. 15, 1926.

Exceptions from Supreme Judicial Court, Oxford County, at Law.

Caspart Cohen was indicted for keeping and maintaining a common nuisance. Defendant's plea of autrefois convict was overruled, and he excepts. Exceptions overruled. Judgment for the State.

Argued before WILSON, C. J., and PHILBROOK, STURGIS, BASSETT, and PATTANGALL, JJ.

Hugh W. Hastings, Co. Atty., of Fryeburg, for the State.

Aretas E. Stearns and George A. Hutchins, both of Rumford. for respondent.

WILSON, C. J. The respondent was indicted at the February term, 1926, of the Supreme Judicial Court in Oxford county, under section 1 of chapter 23, R. S., for keeping and maintaining a common nuisance, to wit, a store situated in the town of Rumford. resorted to for purposes of gambling, and covering a period from January 1, 1924, to the date of the indictment.

To the indictment, the printed case shows that the respondent pleaded autrefois convict, alleging a previous conviction for the same offense in the Rumford Falls municipal court upon a complaint for keeping a store in said Rumford which was resorted to for the purposes of gambling, and covering a period from May 1, 1925, to November 19, 1925; that he pleaded guilty to the charge, which was brought under section 1 of chapter 127, R. S., and the judge of the municipal court, which is expressly given jurisdiction over the offense defined in the last-named section, fined him the sum of $50 and costs, which he paid.

The case, based on the indictment, is now before this court on a bill of exceptions, which must be overruled.

This court has frequently had occasion to call attention of counsel to essential requirements of a bill of exceptions under section 55 of chapter 82, R. S. State v. Reed, 62 Me. 135; Webber v. Dunn, 71 Me. 331; McKown v. Powers, 86 Me. 291, 29 A. 1079; Neal v. Rendall, 100 Me. 575, 62 A, 706; Jones v. Jones, 101 Me. 447, 64 A. 815, 115 Am. St. Rep. 328; Feltis v. Lincoln Power Co., 120 Me. 101, 112 A. 906.

The printed case, which contained nothing on the title page to indicate that it is a bill of exceptions, first sets forth, under the caption "Foreword," certain alleged facts, and refers to the indictment, plea, and record of an alleged former conviction, and states they "are printed within." The "foreword" is followed by what purports to be a copy of an indictment for maintaining a gambling nuisance and a record of the Rumford Falls municipal court, showing a complaint against one Casper Cohen for keeping a place resorted to for gambling, a conviction, and payment of a fine.

Then follows, under the caption "Exceptions," the following:

"After hearing on the plea of former conviction filed by the respondent, the court overruled the respondent's plea; whereupon the respondent has alleged exceptions, and prays that his exception may be allowed."

Whether the "foreword," the indictment, plea, or record are thus made a part of the bill of exceptions may be questioned, and this court has repeatedly ruled that it cannot "travel outside the bill of exceptions" and consider documents or evidence not made a part thereof, though contained in the printed case. The bill of exceptions must be able to stand alone. Jones v. Jones, supra; Feltis v. Lincoln Power Co., supra.

But, overlooking the irregularity, if any, in this respect, and assuming that it was the intent of counsel to make the "foreword" and copies of the indictment, plea, and record a part of the bill of exceptions, the proceedings, so far as they are set forth in the printed case, appear either to have been irregular, or the printed case does not set forth sufficient to show whether and how the respondent was aggrieved. The printed case does not state how the issue was joined, and what it was, or what the final judgment was. It sets forth only that the plea of former jeopardy was overruled, and to this ruling the respondent excepted.

The bill of exceptions, whether confined to the part under that title, or the entire...