State v. O'Donnell

• Decision Date: 27 July 1932
• Citation: 161 A. 802
• Court: Maine Supreme Court
• Parties: STATE v. O'DONNELL et al.

161 A. 802

STATE

v. O'DONNELL et al.

Supreme Judicial Court of Maine.

July 27, 1932.

Appeal from Superior Court, Cumberland County.

John J. O'Donnell, Gregory Griffin, and Phillip Williams were convicted of robbery, and each of them separately appeals.

Appeals dismissed, motions denied, and Judgment for State.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Herbert J. Welch, of Portland, for appellants.

Walter M. Tapley, Jr., of Portland, for the State.

DUNN, J.

On Friday, September 18, 1931, at about 11 o'clock in the forenoon, three armed and masked persons, two of them wearing overalls, suddenly and unexpectedly entered the office of the Cabot Manufacturing Company, in Brunswick. They ordered the paymaster to put up his hands, turn around, and look out a window. The other employees were made to hold up their hands, and face the wall. All were covered by revolvers. One of the intruders gathered the money (amounting to $8,129.46, from which the weekly pay roll was being prepared), from a table, into a bag, and made away with it. The other stick-up men immediately followed; the last one backing out. Neither the paymaster, from whose possession the money was taken, nor any employee of his office, nor a clerk in an adjoining office, describes the appearance of the robbers, except in general respects. No one else connected with the company then knew of the deed. All these facts are about as morally certain as human evidence can establish things.

John J. O'Donnell, Gregory Griffin, Dennis Franco, George Loring, and Phillip Williams, all of Portland—some of them of brief residence there—were suspected of the crime. They were jointly indicted. All except Loring, who apparently was not in custody, were tried together, before the superior court in Cumberland county, at the January term, 1932. As to Franco, the jury verdict, by direction of the presiding justice, was not guilty. O'Donnell, Griffin, and Williams were found guilty.

Exceptions were taken, during the trial, to the admission of certain evidence. On the part of Williams, exceptions included the admission (after preliminary proof, in the absence of the jury, of its voluntary character) of an alleged confession of his guilt. None of the exceptions was perfected. At the conclusion of the evidence, motions that verdicts of not guilty be ordered were overruled. To the overruling of these motions, exceptions were noted.

After verdict, general motions for new trial were addressed to the presiding justice (as motions in criminal cases must necessarily be. State v. Dodge, 124 Me. 243, 127 A. 899). Filing the amotions operated as a waiver of exceptions to the refusal to direct verdicts. State v. Simpson, 113 Me. 27, 92 A. 898; State v. Di Pietrantonio, 119 Me. 18, 109 A. 186. The motions were overruled.

Separate appeals have brought the case to the law court. Rev. St. c. 146, § 27. In each instance, the question is whether, in view of all the evidence, the decision from which the appeal was taken is wrong. State v. Lambert, 97 Me. 51, 53 A. 879; State v. Albanes, 109 Me. 199, 83 A. 548; State v. Priest, 117 Me. 223, 103 A. 359; State v. Dodge, supra. That decision held that the jury was warranted in believing beyond a reasonable doubt, and therefore in declaring by their verdict, that the respondents were guilty of robbery.

Circumstances are woven into the texture of the case for the government. The admission of circumstantial evidence is too well established to need the citation of authority. When, considered as a whole, circumstantial evidence leads to a conclusion of guilt, with which no material fact is at variance, it is not, as a matter of law, inferior to direct evidence, and neither the court nor the jurors can conscientiously disregard it. 16 Corpus Juris, 763.

The case will be as clearly presented, perhaps, as in any other way, if it be now stated that there was evidence tending to prove that on Wednesday, two days before the robbery, an Essex automobile of the sedan type, painted green, belonging to a Portland physician, was stolen.

In the afternoon of that same day, it is shown that Williams and O'Donnell (of the respondents) came to Brunswick, in a car similar in description; that they stopped at the home of Sybil and Marguerite Peters, where permission was asked, and granted, to leave the car in the garage until the next night (Thursday). According to Marguerite Peters, the men remained there the greater part of the afternoon, returning again in the evening, when her sister Sybil was also at home. Later in the evening, Griffin (the third respondent) and a man unknown to the Peters girls arrived in another automobile. The four—William, O'Donnell, Griffin, and the stranger—left the Peters' house together, so both girls say. O'Donnell contradicts the statement about leaving the car, and says he never even knew of its being left there.

The testimony records no further incident until Friday morning.

Then, between 10 and 10:30 o'clock, so Sybil Peters swears, O'Donnell came to her house, and drove the car away. This, too, is denied by O'Donnell.

Edward M. Brown, a deputy sheriff, testifies that on Friday morning, not far from 11 o'clock, while crossing the bridge leading from Brunswick to Topsham, he saw O'Donnell, sitting sidewise, nearly facing the driver, in the front seat of a green sedan, which was coming into Brunswick. The deputy did not know the driver, nor the two men on the rear seat. He states he thought the car was an Essex, but it may be that his recognition was too slight to be of consequence. The evidence of this witness is valuable as affording room for the jury to find that O'Donnell was in Brunswick, or on the edge of Brunswick, on a day when his own testimony would show that he was not there, and at an hour approximating that of the commission of the crime, at which time he claims he was asleep in a Portland hotel.

A little after 1 o'clock Friday afternoon, Ezbra D. Brown, of Brunswick, found a green Essex sedan abandoned in a wood lot back of his home. A dealer's license plates were on the car. In it were blue denim overalls; also a leather bag, which the witness called a Boston bag, containing a bottle of medicine, and a "lung tester, or some rubber affair."

Francis A. Forgione, the Portland physician whose automobile was stolen, attests confidently to his ownership of the car discovered in the woods. He well describes it, and, supplementing recollection from minute or record, gives its motor and serial numbers.

Around 10 o'clock Saturday night (that of the day next after the robbery) Williams and Griffin appeared at the home of the latter's sister-in-law in Hopedale, Mass. A year or more had passed since Griffin had seen his marriage relative; he gave her $100 at this time, as a wedding present.

Where, for the next fortnight, Griffin and Williams were staying, and whether separately or together, is not more definite than Intermittently in Massachusetts towns. Griffin was at his brother's (this sister-in-law's) in Hopedale, frequently. Williams came with him several times. A taxicab driver testifies that on the Saturday night of their first appearance he drove them to a place called the Blackstone Inn, where they drank and gambled. They had, he gives evidence, "considerable money." They left, about 5 o'clock the next morning, in the cab in which they had come.

O'Donnell, on his version, went to Boston from Portland, on the Monday following the robbery to see about an attached car; he says that he returned on Thursday. A few days later the evidence shows he was in Hopedale, Mass., looking for Griffin. He found him at a show in Milford. Where O'Donnell, or, for that matter, Williams and Griffin were, from that time until October 2d, is differently indicated. Apparently all three were in Massachusetts, crossing occasionally into Rhode Island; there is allusion to "running stuff" (liquors) out of Providence.

On Friday, October 2d, Williams, Griffin, and O'Donnell came to a lodging house in Milford, Mass., looking for a room where the three might be together. No such room was available until Sunday. A large room was engaged for that time. Williams and Griffin then left; O'Donnell remained, engaging and paying for a smaller room to occupy for the intervening time. He registered as John Curran.

Williams and Griffin did not come back till Monday noon. They then paid for the large room one week in advance; O'Donnell moved in with them. They said they might remain all winter, and asked if more "boys" could be accommodated.

The next morning the landlady learned that two strange men had been admitted to her house during the night, occupying a room (vacant the evening before) next the large room. On being questioned as to the newcomers, Williams said it was so late when they came in (impliedly all together) that they did not want to ring the bell. The men then registered and paid. One of them was known as Leo; the other as Frisco.

A little before 1 o'clock that afternoon the five left in a new Chrysler ear, going in the direction of Blackstone. Williams, it appears, had bought the car in Rhode Island, a few days before, paying $500 for it. Griffin was with him at the time.

Up to Wednesday afternoon none of the men had been back to the lodging house. That afternoon, as a result of something she read in a newspaper, the landlady notified the police; an officer came and searched the rooms the men had occupied. In the room of Williams, Griffin, and O'Donnell, there was a locked suitcase, which the officer opened, removing three revolvers, two boxes of cartridges, and some loose cartridges.

Of the roomers, no one of the five was again at the house.

They had been arrested, early in the morning of that day, at the Blackstone Inn. They were taken to the police barracks at Wrentham, Mass., for an hour or so, and thence to headquarters at the State House in Boston.

The government insisted that...