State v. Howard

• Decision Date: 14 January 1918
• Parties: STATE. v. HOWARD.
• Court: Maine Supreme Court

102 A. 743

117 Me. 69

STATE.

v. HOWARD.

Supreme Judicial Court of Maine.

Jan. 14, 1918.

Exceptions and Appeal from Superior Court, Cumberland County, at Law.

Augustus S. Howard was indicted for rape. From a verdict of guilty he brings exceptions, and from denial of a motion for a new trial, he appeals. Exceptions overruled, and appeal dismissed.

Argued before CORNISH, C. J., and SPEAR, KING, BIRD, HANSON, and MADIGAN, JJ.

W. C. Eaton and G. S. Murphy, both of Portland, for appellant.

C.' L. Beedy and J. H. Hone, both of Portland, for the State.

CORNISH, C. J. Indictment for rape. Verdict guilty. The case is before this court on exceptions and on appeal from the denial of a motion for a new trial by the presiding justice.Exceptions.

1. The first exception is to the exclusion of evidence offered by the respondent "of statements and discussions occurring after the date when he was accused and arrested for the offense, to the effect that his reputation for morality had always been good in the community where he lived and carried on his business."

This court might well decline to entertain this exception because it is drawn in such general language as not to comply with the established rules. Not even the names of the witnesses whose evidence was excluded are given, nor the questions that were excluded. There is only the general statement above quoted and a reference to the entire transcript of evidence, which is made a part of the bill. This involves the examination of nearly 100 pages of testimony in order to ascertain, if possible, the precise interrogatories that are covered by the exceptions. Clearly this method meets neither the requirement of the statute nor of the decisions based thereon. R. S. 1916, c. 82, § 55; Doylestown Ag. Co. v. Bracket, Shaw & Lunt Co., 109 Me. 301, 84 Atl. 146; Salter v. Greenwood, 112 Me. 548, 92 Atl. 786; Dennis v. Packing Co., 113 Me. 159, 93 Atl. 58, Ann. Cas. 1917D, 788.

But, waiving that technical point, and passing to the merits of the exception, as the case is important, it is obvious that the evidence offered was merely hearsay, and therefore inadmissible. The statements and discussion of the respondent's reputation by B., C, and D. as related by a listener, A., are outside the line of admissible testimony. If B., C, and D. knew the character and reputation of the respondent for morality and chastity in the community in which he resided, it was competent for the respondent to summon and offer them as witnesses in his behalf, as he in fact summoned many others on that point. The testimony of A., who simply listened to their discussion, is a step too far removed. This exception must be overruled.

2. The second exception is taken to the refusal of the presiding justice to grant the respondent's motion in arrest of judgment.

This motion was based upon the fact that the jury were not kept together in charge of an officer, but were allowed to separate at various times during the progress of the trial and before the cause was given to them at the close of the charge of the presiding justice. Were this in fact an irregularity in procedure, it could not be reached by a motion in arrest of judgment. It is an invariable rule of criminal pleading that a motion in arrest of judgment can reach only intrinsic defects apparent on the face of the record which would render the judgment erroneous, and the term "record," as used in this connection, does not include or mean the evidence in the case, often referred to colloquially as the record, but the court's record of the cause as then made up by the clerk, or the papers filed and minuted on the docket, the full record to be made up later. It comprises the indictment, pleadings, written motions, if any, verdict, etc., in the particular case under consideration. It was in this sense that the word was employed in the recent statement of the familiar principle by this court:

"As a demurrer in a criminal case reaches the indictment as the same may be recorded, so a motion in arrest of judgment reaches the whole record of the cause as made up to the time of filing the motion. Each can reach only errors of record; neither can plead facts not of record." State v. Houlehan, 109 Me. 281, 284, 83 Atl. 1106, 1107.

Where proof of extraneous facts is required, the motion cannot be entertained. It cannot therefore reach matters of evidence, process, service, or procedure.

The following are illustrative cases of its denial: Where the respondent alleged that another and different indictment for similar neglect had been found against it at the same term when the indictment under consideration was found (State v. Bangor, 38 Me. 592); where objections were made to the maimer...