State v. Dodge

• Decision Date: 18 February 1925
• Citation: 127 A. 899
• Parties: STATE v. DODGE.
• Court: Maine Supreme Court

127 A. 899

STATE

v. DODGE.

Supreme Judicial Court of Maine.

Feb. 18, 1925.

Exceptions and Appeal from Supreme Court, Lincoln County, at Law.

Norman C. Dodge was convicted of taking indecent liberties with the person of another. On appeals and exceptions by defendant. Appeals dismissed, and exceptions overruled.

Argued before CORNISH, C. J., and PHILBROOK, WILSON, STURGIS, and BARNES, JJ.

Weston M. Hilton, Co. Atty., of Damariscotta, for the State.

Edward W. Bridgham, of Bath, and George W. Heselton, of Gardiner, for respondent.

WILSON, J. The respondent was indicted for taking indecent liberties with the person of John H. Farnsworth, and was convicted at the April term, 1924.

Following his conviction he filed at the same term a general motion for a new trial upon the usual grounds, which was overruled by the justice presiding, and an appeal taken to this court.

At the October term, 1924, the respondent filed a motion for a new trial based upon alleged newly discovered evidence. Testimony was taken in support of and in opposition to the motion, and, upon being presented to the presiding justice, the motion was denied, and an appeal taken; and the evidence presented at the trial and in connection with the motion, in each case certified to by the court stenographer, but not reported by the presiding justice, is a part of the printed case.

The case also comes forward on an exception to a refusal by the presiding justice at the trial to give the following requested instruction, "The evidence of a demented youth alone is insufficient to convict a respondent charged with the crime of lewdness."

We are confronted ad limine with certain questions of procedure on motions for new trials in criminal cases.

At common law, in both civil and criminal cases, the granting of a new trial rested wholly within the discretion of the justice presiding at the trial, and all motions seeking relief through a new trial must be directed to him. His decision thereon was final, and not subject to review. Moulton v. Jose, 25 Me. 76, 85; State v. Hill, 48 Me. 241; State v. Carter, 121 Me. 116, 115 A. 820.

In 1841 (R. S. c. 115, § 101) it was provided that motions for a new trial might be presented to the whole court upon a report of the evidence; and in 1852 (chapter 246, P. L.) it was further provided, when the motion was based on some ground not shown by the evidence at the trial, that the testimony respecting the allegations in the motion shall be heard and reported by the judge, which provisions are now found in section 57, c. 87, R. S. These provisions, however, relate only to civil actions. State v. Hill, supra; State v. Gilman, 70 Me. 329, 334; State v. Gustin, 123 Me. 307, 122 A. 856.

In criminal cases a motion for a new trial based on any ground must still be directed to the presiding justice, whose decision thereon prior to 1883 was final. State v. Pike, 65 Me. 111.

It was not until 1883 (chapter 205, P. L.), when the death penalty was restored in this state, that an appeal to this court was given from the decision of the presiding justice at nisi prius on motions of this nature, and then only in capital cases, which right of appeal was not extended to other felonies until 1909 (chapter 184, P. L.) On all motions for a new trial in misdemeanors, the decision of the presiding justice is still final. State v. Simpson, 113 Me. 27, 92 A. 898; State v. Carter, 121 Me. 116, 115 A. 820.

While no express provision is found either in the act of 1883, applying to capital cases, or in the act of 1909, extending the right of appeal to other felonies, authorizing an appeal on motions for new trial based on other facts than those appearing in the evidence taken out at the trial, the language of these acts now found in section 28, c. 136, R. S., is broad enough to include all motions for a new trial based on any grounds whatever; and appeals from decisions of the justice presiding at nisi prius, upon motions for a new trial based upon newly discovered evidence, having already been taken in several important cases and entertained by this court (State v. Beal, 82 Me. 284, 19 A. 458; State v. Stain et al., 82 Me. 472, 20 A. 72; State v. Terrio, 98 Me. 17, 56 A. 217), and also been recognized as an appropriate procedure by this court in the recent case of State v. Gustin, 123 Me. 308, 122 A. 856, we think this statute may now fairly be said to have received an accepted construction in this respect which may with propriety be followed in the future.

The method of review by appeal, however is a purely statutory proceeding, and had no place in actions at law under the common law procedure (3 C. J. 316), and hence its scope, limits, and conditions must either be found in the express terms of the statute authorizing it, or be implied from the nature and purpose of the act itself. Being remedial in their nature, such acts should be liberally construed.

There is, perhaps, no strictly analogous statute from which we may fairly infer what is the nature and scope of the review provided for in section 28, c. 136, R. S., by an appeal. It is not denned by its terms, but, following the long-established practice under the statute in civil actions at the time this statute was enacted, this court has already given an appeal from a denial of a general motion for a new trial practically the same effect as a review of a trial in a civil action on a motion for a new trial directed to this court, viz., whether, upon all the evidence, the jury was warranted in arriving at their verdict in finding the respondent guilty beyond a reasonable doubt, having in mind that it is for the jury to determine the credence to be given the witnesses, and the weight of their testimony. State v. Stain et al., 82 Me. 484, 489, 490, 20 A. 72; State v. Lambert, 97 Me. 51, 53 A. 879.

On motions based on newly discovered evidence in civil actions, the evidence comes direct to this court for determination at first hand, while, under section 28 of chapter 136, in criminal cases, the question on appeal must be, was the decision of the presiding justice, from which the appeal was taken, wrong in view of all the evidence in the case and that presented on the motion? State v. Stain et al., 82 Me. 484, 491, 20 A. 72.

Two other questions of procedure are presented, viz., what evidence may be received by the justice at nisi prius on a motion for a new trial based on newly discovered evidence, and how shall the evidence, when presented to this court, be authenticated.

The moving party may, of course, introduce any evidence in support of the necessary allegations on his motion. The question then arises, should evidence be received from the opposing party in rebuttal?

Under the statute relating to such motions in civil cases (section 57, c. 87, R. S.), this court held, in White v. Andrews, 119 Me. 414, that only evidence in support of the allegations in the motion could be received, in effect overruling Greenleaf v. Grounder, 84 Me. 50, 24 A. 461, which followed the Massachusetts practice laid down in Parker v. Hardy, 24 Pick. 246.

As this statute does not apply to criminal cases, the practice in such cases may be determined in accordance with what seems to be more productive of justice, and the practice elsewhere.

The great weight of authority appears to sanction the receipt of counter affidavits in rebuttal, where the practice confines the evidence in support of such motions to affidavits, and this appears to be a salutary rule, and must in principle apply equally to the receipt of oral testimony in rebuttal, where oral testimony may be received instead of affidavits as in this state. Snowman v Wardwell, 32 Me. 275, 277.

The purpose and effect of all rules of procedure should be to end litigation and not prolong it. If the opposing party, by evidence in his possession, cannot only impeach the witnesses relied upon in support of the motion, but can show that the evidence relied upon is wholly false, or for any reason not entitled to any weight, he should not be put to the inconvenience and both he and the state to the expense of again prosecuting or defending his cause before another jury, and in no case, unless the presiding justice, or this court on appeal, shall first decide after hearing all the evidence that justice requires another trial.

This rule has apparently been followed in practice in this state in the three important criminal cases above cited (State v. Beal, supra; State v. Stain et al., supra, and State v. Terrio, supra), and in practically all the other states it is the recognized course of procedure in both civil and criminal cases. 25 Am. Ann. Cases, 1912 B, 1303, note; 14 Eney. PI. & Pr. 912; Zeller v. Griffith, 89 Ind. 80; People v. Sing Tow, 145 Cal. 1, 78 P. 235; Finch v. Green, 16 Minn. 355 (Gil. 315); Williams v. Baldwin, 18 Johns. 489; Burlingame v. Cowee, 16 R. I. 40, 12 A. 234; Burr v. Palmer, 23 Vt. 244; Hammond v. Pullman, 129 Mich. 567, 89 N. W. 358; Hopkins v. Knapp, etc., 92 Iowa, 212, 60 N. W. 620; Chrisco v. Tow, 153 N. C. 434, 69 S. E. 422.

We therefore hold, that upon motions for new trials in criminal cases, based upon the ground of newly discovered evidence, testimony may be received, not only to impeach the witnesses offered in support of the motion, but in strict rebuttal of their testimony.

One more question of procedure remains as to how the evidence taken out...