State v. Fenlason

• Decision Date: 13 December 1886
• Citation: 7 A. 385
• Parties: STATE v. FENLASON.
• Court: Maine Supreme Court

7 A. 385

STATE

v. FENLASON.¹

Supreme Judicial Court of Maine.

December 13, 1886.

On exceptions by respondent from supreme judicial court, Washington county.

Indictment for arson. The opinion states the facts.

E. E. Livermore, Co. Atty., for the State.

George M. Hanson, for respondent.

EMERY, J. 1. As to the admission of the testimony of Gray about threats made by respondent to burn the building. Evidence of prior threats by a respondent to do the particular act he is charged with doing is clearly admissible. No citation of authorities is needed to establish the proposition. The threats testified to by Gray were threats to burn the same building the respondent was charged with burning. It is urged in the argument that the ownership of the building had changed between the time of the threats and the time of the burning. The bill of exceptions does not state any such change of ownership. If there had been such a change, it would weaken the force of the evidence, but we doubt if it would entirely exclude it. The evidence would still have some tendency to prove some elements of the crime charged,—the act, the intent, the malice, or, at least, the disposition of mind of the respondent.

2. As to the presiding justice's statement in his charge of what was un-controverted. It is the duty of the presiding justice to present the case to the jury as plainly as possible. He should eliminate all uncontroverted matters and distinctly point out the precise issues. If he errs in assuming a matter to be uncontroverted which a party intended to controvert, his attention should be called to the error before the jury retire, that he may make proper corrections. Rule 11; Murchie v. Gates, 78 Me. 300; S. C. 4 Atl. Rep. 698. In this case the objection was made to the judge's statement of the controversy, and, indeed, the bill of exceptions states that no such contention was made as the counsel now suggests. We therefore assume that the controversy was correctly stated.

3. As to the expression in the charge upon the matter of the respondent's attempted alibi. It is true the respondent need not prove his alibi beyond a reasonable doubt. He may show where he was at the time the act was committed, and perhaps the further off he was from the seene of action the more doubt he raises as to his guilt. Still he may have participated, though at a distance; and hence distance is not a conclusive answer to the indictment, unless it be so great as to render it impossible for him to have participated in the crime. It appears from the charge (the whole charge being made a part of the bill of exceptions) that the respondent's counsel had claimed in his argument to the jury there was "the most perfect proof of an alibi," while the testimony of the respondent's own witnesses showed that he was within 25 rods, or thereabouts. The judge suggested to the jury to ascertain if the respondent was near enough to assist, by giving warning or otherwise; and then, in alluding to the counsel's claim that an alibi was proved, used the expression complained of. Counsel seemed to contend that proof of any distance was proof of alibi, and hence a conclusive answer to the indictment. The judge simply stated, in effect, that, to make mere distance a conclusive answer as an alibi, it must be shown to be so great as to render it impossible for the respondent to have participated. This was correct.

4. As to the Sunday proceedings. It is settled in this state that a jury may deliberate on Sunday, and may write out and seal up their verdict on Sunday. True v. Plumley, 36 Me. 466. The weight of authority is in favor of the proposition that the court may receive a verdict on Sunday, the case having gone to the jury before Sunday. Hoghtaling v. Osbom, 15 Johns. 115; Huidekoper v. Cotton, 3 Watts, 56; Baxter v. People, 3 Gil. 368, cited with approval in True v. Plumley. See, also, Van Riper v. Van Riper, 4 N. J. Law, 156; Webber v. Merrill, 34 N. H. 202; State v. Ricketts, 74 N. C. 187; Reid v. State, 53 Ala. 502. See, also, notes to Coleman v. Henderson, 12 Amer. Dec. 291. If the jury may deliberate on Sunday, and write out and seal up their verdict on Sunday, and the court may receive the verdict on Sunday, it would seem the presiding justice might on Sunday send blank forms to...