State v. Davis

• Decision Date: 29 June 1917
• Citation: 101 A. 208,116 Me. 260
• Parties: STATE v. DAVIS.
• Court: Maine Supreme Court

101 A. 208

116 Me. 260

STATE

v. DAVIS.

Supreme Judicial Court of Maine.

June 29, 1917.

Exceptions from Superior Court, Cumberland County.

W. C. Davis was convicted of crime, and brings exceptions. Exceptions sustained.

Argued before CORNISH, KING, BIRD, HALEY, HANSON, PHILBROOK, and MADIGAN, JJ.

Jacob H. Berman, Co. Atty., of Portland, for the State. Henry C. Sullivan, of Portland, for respondent.

BIRD, J. The indictment in this case charges the defendant with violation of R. 5. 1903, c. 119, § 16, punishable by imprisonment for any term of years. At the close of the evidence at the trial a motion was made for the direction of a verdict for defendant, which was refused. After verdict of guilty, the defendant moved in arrest of judgment, because:

(1) "The indictment does not allege or set forth any substantive crime;" (2) "because the indictment does not set forth or allege any facts sufficient to constitute the substantive crime," etc.; (3) "because the verdict is against the law and the evidence."

This motion was also overruled.

The bill of exceptions, upon which alone the case is before this court, sets out the two motions, their refusal and the reserving of exceptions thereto. It concludes:

"The report of the evidence given at said trial, which is filed herewith, is hereby expressly referred to and made part of this bill of exceptions.

"To all which rulings and instructions and refusals to instruct the said respondent excepts, and prays that his exceptions may be allowed.

The defendant urges that during the trial the jury were allowed to separate (but to this order of the court no objection appears to have been made nor exception noted), and that his exceptions should be allowed upon this ground. This alleged irregularity in the course of the trial, assuming it can be reached by exceptions, cannot be considered. The bill of exceptions is entirely silent as to any such ground. Such a bill of exceptions is insufficient, even when the transcript of the evidence is made part of the bill and the transcript shows the irregularity. McKown v. Powers, 86 Me. 291, 29 Atl. 1079; Richardson v. Wood, 113 Me. 328, 330, 93 Atl. 836; Borders v. B. & M. R. R., 115 Me. 207, 98 Atl. 662.

The defendant at the close of the evidence asked a directed verdict, as already seen. The request was refused, and defendant reserved exceptions. After verdict, he moved in arrest of judgment for alleged defects in the indictment and because the verdict was against the law and the evidence. The exceptions to the denial of the motion in arrest by reason of defects in the indictment is not argued. If the last or third reason alleged can be ground for a motion in arrest, it precludes the consideration of the exceptions to the refusal to direct a verdict, as it is in effect a motion for new trial. The motion waives the exceptions....