State v. Hoffses

• Decision Date: 21 January 1952
• Citation: 147 Me. 221,85 A.2d 919
• Parties: STATE v. HOFFSES.
• Court: Maine Supreme Court

Page 919

85 A.2d 919

147 Me. 221

STATE v. HOFFSES.

Supreme Judicial Court of Maine.

Jan. 21, 1952.

Hillard H. Buzzell, Belfast, for plaintiff.

Alan Crossman, Belfast, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

MURCHIE, Chief Justice.

The respondent herein, convicted of operating a motor vehicle upon a highway while under the influence of intoxicating liquor, within the purview of R.S.1944, c. 19, § 121, brings his case to this Court on exceptions to the denial of a motion for a directed verdict and to evidence rulings permitting two police officers to testify to his admission that he was driving it when it overturned in the highway during the late evening of November 9, 1950. The exception challenging the refusal of the motion for a directed verdict must be held to have been waived by a motion for a new trial, filed after verdict, although the docket entries do not disclose that any action was taken thereon. State v. Simpson, 113 Me. 27, 92 A. 898; State v. Bobb, 138 Me. 242, 25 A.2d 229. It may be noted, however, that the respondent loses nothing by the waiver. The sole ground of error alleged in it presents the identical issue raised by his challenge of the evidence rulings. His exceptions must be overruled.

The turning over was seen by one Sam Cassida, looking out the window of his house, nearby. Cassida went to the scene, promptly, after trying, unsuccessfully, to find a flash-light. When he reached the scene, the respondent was standing in front of the truck and within a few feet of it. He had a fresh head injury, which Cassida described as a bump, scratch or laceration. No other person was in sight. He asked Cassida to notify the police. Cassida did so, and dressed the injury, but saw nothing to indicate that the respondent was 'under the influence of intoxicating liquor'. Neither did three other witnesses, who testified to seeing the truck as it was driven along the highway, shortly before the overturning. There was ample evidence, however, to support the factual finding of the jury on that point.

The evidence discloses that one of the police officers aforesaid saw the respondent drinking in a beer parlor, early in the evening of the day in question, and saw him leave it and proceed toward the truck, which was then parked nearby, with a lady. That officer recognized the truck as one often driven by the respondent, warned him that he had been drinking too much to drive it, and asked him to turn over the key to it. This the respondent refused to do, but undertook to report to the police before driving it. He did not report. He was not seen to enter the truck, or to drive it from where it was parked to the scene of the overturning, but it was found there within an approximate half-hour of the warning. The distance involved is not given definitely in the record, but the three witnesses who saw the truck in operation on the highway testified that it passed them on the road and that they followed it, in the car in which they were traveling, for about two and a half miles.

The testimony challenged by the exceptions includes that of the police officer who warned the respondent not to operate the truck, and was the first to reach the scene where it overturned. He testified that the respondent admitted that he was alone in the truck, and was driving it, when it turned over. A second officer asserted that the respondent said he knew he took the curve on which the overturning occurred too hard, that he had been drinking too much, and that he should not have been driving.

The respondent's claim is that the corpus delicti was not proved, except by his admissions to the officers and that his statements, as extra-judicial confessions, were not competent evidence to establish it. He relies particularly on the recent decision of this Court in State v. Levesque, 146 Me. 351, 81 A.2d 665. Therein it was declared that the extra-judicial confession of a respondent that he had set fire to rubbish in the cellar of a building, placed it against a wooden partition and watched it until the wood started to burn would not establish the corpus delicti of the crime of arson, against the evidence of the firemen who extinguished the fire that no wood had in fact been ignited. The case discloses that exceptions were reserved against a ruling admitting evidence of the confession of the respondent, but the case was decided on an appeal from the denial of a motion for a new trial.

The situation presented in the Levesque case is in no way comparable to the present one. There it was adequately proved that there had been a fire in the cellar of the building involved in the arson charge, but there was no proof, outside the confession, of a burning that would constitute arson. In this case it is proved conclusively that a motor vehicle turned over while being operated on a highway, that the vehicle had been in the control of the respondent a half-hour earlier, some miles away, and that the respondent was not only at the place where the overturning occurred immediately thereafter, but was (apparently) alone, and had suffered a recent injury. It was proved also that he assumed the responsibility for notifying the police of...