State v. Dunn
| Decision Date | 02 March 1977 |
| Parties | STATE of Maine v. Robert DUNN. |
| Court | Maine Supreme Court |
Robert S. Raymond, Waldemar G. Buschman, Asst. Attys. Gen., Augusta, for plaintiff.
Judge & Cox by Robert E. Cox, Newport, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, * POMEROY, WERNICK and ARCHIBALD, JJ.
Appellant was found guilty by a jury of violating former 17 M.R.S.A. § 1601 () and former 17 M.R.S.A. § 2101 (grand larceny). From a judgment entered on the jury verdicts, appellant seasonably appealed.
We deny the appeal.
Appellant raises three issues on appeal: the sufficiency of the evidence to support his conviction; failure to declare a mistrial because of the introduction of a prior conviction in which the appeal was pending; and failure to declare a mistrial because the State attempted to introduce a prior juvenile conviction.
It is unnecessary to outline in detail the complicated set of facts found in this case. Suffice it to say that the reasoning of the court as expressed by Mr. Justice Archibald in State v. Dunn, Me., 368 A.2d 595 (1977) 1 is dispositive of the claim that the evidence was insufficient to justify the conviction for cheating by false pretenses.
Appellant's assertion that there was insufficient evidence to support the larceny conviction is likewise without merit. While appellant is correct in stating that the victim assisted in the transportation of the vehicles in question, it does not automatically mean that there are no facts which would support a finding of felonious intent to take and carry away the property. The victim in this case, the jury found, assisted in the removal of the vehicles because of false representations made to him by appellant. The record clearly establishes that appellant likewise assisted in the 'carrying away' of the vehicles. The same facts which support the jury's finding of cheating by false pretenses, i.e., appellant knew he and his business associate had made false representations on which the victim relied, are likewise sufficient to support a finding of felonious intent by the appellant.
Appellant also claims as error the trial court's refusal to declare a mistrial after the State introduced evidence of a prior conviction from which an appeal was pending. 2
To decide the correctness of this ruling, it becomes necessary to ascertain what was intended when the legislature used the word 'conviction' in 16 M.R.S.A. § 56,
'but conviction of a felony, any larceny or any other crime involving moral turpitude may be shown to affect his credibility, . . ..' 3
As this court pointed out in Donnell v. Board of Registration, 128 Me. 523, 524-25, 149 A. 153, 154 (1930):
'Even superficial reading of statutes and opinions of courts interpreting them reveals that in the language of criminal jurisprudence, here and in Great Britain, the word 'conviction' has distinct and different meanings.'
In that case, what was then R.S., c. 18, § 14 was involved. A petition for writ of certiorari was used to challenge the right of the Board of Registration of Medicine to revoke Donnell's certificate of registration as a physician. A jury had found him guilty of the crime of manslaughter. A motion for new trial after verdict and before sentence was filed and overruled. Appeal had been seasonably entered and was pending in the Law Court.
The Board of Registration purported to act according to the provisions of then R.S., c. 18, § 14, which read:
'Said board, after a conviction before a proper court, for crime in the course of professional business, of any person to whom a certificate has been issued by them, and after hearing, may be vote of two-thirds of the entire board revoke the certificate and cancel the registration of the person to whom the same was issued.'
This court, in interpreting that statute, held that on the facts in that case there was no 'conviction' in the sense in which the term had been used in the statute, and would not be, until judgment was ordered and nothing remained to be done except execution of the sentence.
A similar result was reached in State v. DeBery, 150 Me. 28, 103 A.2d 523 (1954). The statute there examined was R.S. 1954, c. 19, § 121, which read:
'The license or right to operate motor vehicles of any person convicted of violating the provisions of this section shall be revoked immediately by the Secretary of State upon receipt of an attested copy of the court records, without further hearing.'
The court said:
State v. DeBery, supra, 150 Me. at 30, 103 A.2d at 524.
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...that ordinarily the "conviction" is the verdict of guilty. See also State v. Morrill, 105 Me. 207, 73 A. 1091 (1909). In State v. Dunn, Me., 370 A.2d 1099 (1977), this Court ruled that a prior conviction from which an appeal was pending may be shown to affect the credibility of a witness, s......
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...he concluded that the convictions would be more prejudicial than probative in value. On both grounds the court erred. In State v. Dunn, 370 A.2d 1099, 1101 (Me.1977) we held that a prior conviction includes a conviction in which an appeal is still pending. Although our decision in Dunn invo......
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