State v. Graves

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: Before WILLIAMSON; MARDEN
• Citation: 224 A.2d 57
• Parties: STATE of Maine v. Gene V. GRAVES.
• Decision Date: 14 November 1966

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224 A.2d 57 STATE of Maine
v.
Gene V. GRAVES. Supreme Judicial Court of Maine. Nov. 14, 1966.

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Frank G. Hickey, County Atty., Houlton, for the State.

Barnes & Barnes, by George B. Barnes, Houlton, for respondent.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

MARDEN, Justice.

On exceptions, under practice before the adoption of the Maine Rules of Criminal Procedure.

The respondent was charged in November of 1964 by indictment containing two counts, the first alleging indecent liberties and the second, one of the forms of sodomy. Upon trial in April of 1965, within the evidence presented was testimony that on the day in question, respondent had invited complainant, a boy of 14 years of age, into his car and during the course of travel in the car had shown the boy a pack of playing cards bearing prints of pornographic photographs, following which the alleged indecent liberties and sodomy occurred.

At trial the pack of playing cards, identified as those involved and as State's Exhibit 1, was offered as evidence and admitted over the following objection:

DEFENSE COUNSEL: 'I object because they are immaterial to the issue in this case that charges indecent liberties, and they may, the possession of such cards may in and of itself may constitute a separate crime within the meaning of our laws, and if they are permitted to be entered in this case they are of such a nature and having examined now for the first time, they would be inflammatory and prejudicial to the issue being tried here, and therefore they should not be admitted.

'THE COURT: May I see State's Exhibit 1?'

DEFENSE COUNSEL: 'And for the record, if Your Honor please, I should state that there is pending in this Court an appeal on a misdemeanor charging possession of this particular deck of cards.

'THE COURT: State's Exhibit No. 1 is admitted, and your exception is noted.'

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Following verdict of guilty on both counts, respondent moved that the verdict be set aside and a new trial granted, based upon the usual grounds, together with a contention that the admission in evidence of State's Exhibit 1 'was error, in law.' To the denial of this motion, exceptions were taken.

The bill of exceptions condenses respondent's reservations relative to Exhibit 1 into claim of error upon two grounds, 'namely:

1) As a foundation for the admissibility of this exhibit the State offered proof that the exhibit was displayed by defendant to its prosecuting witness, a minor, and this constituted a separate and distinct crime, complaint and warrant therefor being pending on the same criminal docket, and

2) The exhibit was irrelevant and of such a nature as to be highly prejudicial and inflammatory.'

His 'exceptions' to the denial of a new trial are confined to the usual grounds that the verdict 1) was against the law, 2) against the evidence, and 3) against the weight of the evidence.

Rule 10 of the Criminal Rules, then in effect, ¹ provided '* * * No exceptions lie to the denial of a motion for a new trial in any criminal case, and no appeal may be taken from such denial except in a felony case.' 155 Me. 646. The exceptions recorded purport to include a reservation upon the denial of the motion for a new trial but the docket entries in the case, which entries have been made a part of the record, carry a notation of 'Appeal' following the 'Motion (for new trial) denied' and we accept the case as properly before us on that point. The present charge involves a felony.

In briefing his case to this court, respondent makes additional attack upon the admission of Exhibit 1, upon the ground that Exhibit 1 was unlawfully obtained, and therefore inadmissible.

Our review of this case must be confined to the exceptions by which it came to us. It has been said many times, the following cases being representative of many, that the specific grounds of the exceptions must be stated in the trial court so that the presiding Justice and the opposition may be apprised of the issue upon which the presiding Justice is required to rule 'and all objections not thus specifically stated, should be held to be waived.' Wright, Admr., v. Bubar, 151 Me. 85, 87, 115 A.2d 722, 723. See also Martin, Appellant, 133 Me. 422, 425, 179 A. 655, and State v. Turner, 126 Me. 376, 377, 138 A. 562.

The practice for which the cases cited above stand, was reflected in Rule 8 of the then Criminal Rules (155 Me. 642) which states, at page 645:

'Objections to the admission or exclusion of evidence must be noted at the time the ruling is made or regarded as waived. * * *'

'It is well settled that a question not raised at the trial will not be considered on exceptions.' Bixler v. Wright, 116 Me. 133, 134, 100 A. 467, 468; Auburn Sewerage District v. Whitehouse, 128 Me. 160, 163, 146 A. 80.

'A ground of exception not stated in the trial court cannot be stated on appeal.' Moore, Appellant, 113 Me. 195, 199, 93 A. 180, 182. The word 'appeal' is here used in a broad sense.

It is granted that this rule is not without exception as appears in Thompson v. Franckus, 150 Me. 196, 107 A.2d 485, and State v. Hudon, 142 Me. 337, 52 A.2d 520, in which on appeal 'exceptions' not reserved have been considered by this court 'as a matter of grace, but not as a matter of

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right.' Thompson, supra, 150 Me. at page 203, 107 A.2d at p. 489. This has been done where this court felt from the record that there had been highly prejudicial errors of law well calculated to result in injustice.

This record does not permit us to reach that conclusion. Had the trial court been faced with objections to the...