State v. Hume

• Decision Date: 26 January 1951
• Citation: 78 A.2d 496,146 Me. 129
• Parties: STATE v. HUME.
• Court: Maine Supreme Court

Page 496

78 A.2d 496

146 Me. 129

STATE v. HUME.

Supreme Judicial Court of Maine.

Jan. 26, 1951.

James L. Reid, County Atty., Augusta, for the State.

William H. Niehoff, Waterville, for respondent.

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

FELLOWS, Justice.

This is an indictment for breaking, entering and larceny against Raymond C. Hume, alias Raymond Humes, alias Polack Humes. The respondent was found guilty by a Kennebec County jury and the case is now before the Law Court on exceptions and appeal.

The indictment was returned by the Grand Jury at the June Term, 1948, for violation of Revised Statutes 1944, Chapter 119, Section 3 in breaking and entering in the nighttime the office at the Maine Central Railroad station at Winthrop and committing larceny therein. The respondent entered a plea of not guilty.

At the February Term, 1949 the respondent was found guilty by verdict of the jury. Exceptions taken to the admission of certain improper testimony were sustained by the Law Court in State v. Hume, 145 Me ----, 70 A.2d 543, and the respondent was again tried at the February Term, 1950. The pending appeal and exceptions relate to this second trial.

Before the trial the respondent filed a motion for continuance on the ground that prejudicial statements had been published in local newspapers two weeks previously, which he claimed constituted an invasion of his right to a fair and impartial trial. This motion was denied by the presiding justice to which denial the respondent excepted.

On the morning of the second day of the trial, and during the trial, the respondent filed a motion for a mistrial on the ground that a certain article published on that day, appearing in local newspapers, was prejudicial to the rights of the respondent. Exceptions were taken to the denial of this motion.

During the course of the trial several exceptions were filed to the rulings of the presiding justice relative to the admissibility of certain testimony.

This case is here on exceptions to the refusal to grant a continuance, to the refusal to order a mistrial, and on exceptions to the admission of certain testimony, and also on appeal from the denial of a motion, made to the justice presiding, for a new trial.

First and Second Exceptions

The first two exceptions are directed to the refusal to grant continuance and the refusal to order a mistrial.

The article in the Kennebec Journal published February 16, 1950, quoted in the motion for continuance, was as follows:

'Hume to Stand Trial Again at Current Session

'Raymond C. Hume, Augusta, will stand trial for a two and a half your old charge during the present term of Superior Court, according to a statement made Wednesday by County Attorney James L. Reid. The 53 year old local restaurant proprietor was found guilty in February of last year by a Superior Court jury of a charge of breaking, entering and larceny into the Winthrop railroad depot in 1947. The County Attorney in a prepared statement stated he was asking for a new trial on the conclusion that 'the question of the innocence or guilt of Hume is for the jury to determine.' Hume had been granted a new trial by the Law Court after filing exceptions.

'Hume was sentenced to serve 6 to 12 years in State Prison by Justice Arthur E. Sewall.

'His attorney William C. Niehoff of Waterville, filed exceptions to certain legal aspects of the trial. Referred to the Law Court, the exceptions were upheld by Main's Chief Justice Harold H. Murchie.

'He was then granted a new trial. He had been released under $20,000 bail pending the outcome of the filed exceptions which, when filed by the Law Court, could have resulted in a dismissal of the charge.

'Reid's full statement is as follows: 'After reviewing the opinion of the Law Court and reviewing the evidence, and after consultation with the presiding justice (Justice Donald W. Webber), I have concluded that the question of the innocence or guilt of Raymond C. Hume is for the jury to determine and therefore I shall ask for a trial.

"The decision of the Law Court hinged on a statutory amendment relating to the admissibility of certain evidence and does not appear to me to have significantly changed the jury aspect of the case.'

'The retrial was granted by the Law Court on the grounds that the Court (Justice Sewall) erroneously admitted certain evidence with respect to the credibility of certain trial witnesses.'

The article as published on February 16, 1950 in the Waterville Morning Sentinel was, in substance, the same as in the foregoing article from the Kennebec Journal. The second article published during the trial on March 2, 1950 in both of the above named newspapers, for which mistrial was asked, rehearsed the fact that the case had been previously tried and the new trial granted, and in addition made a summary of the evidence introduced by the State during the first day of the trial.

There was no claim made that any of the newspaper articles contained any statement other than the truth, and the greater portions were matters of public knowledge and court record. They were not 'inflammatory' and not intended to prejudice. The statement by the County Attorney and other statements therein, might or might not influence the decision of some juror if he read the accounts, depending of course on the mental capacity of the juror, his power of analysis, and his sense of fairness. It does not appear, however, that any one of the jurors ever saw any one of the newspaper articles published before or during the trial.

In ruling upon the motion for mistrial the presiding justice stated to counsel that the press reports were in accordance with the records and 'within the domain of public knowledge.' The presiding justice also said that 'opportunity was afforded to counsel for the State and the respondent to further examine as to the impact of any prior readings of press reports pertaining to the case, or any other conversation or outside influences upon the mind of the jury. In each case the Court is satisfied that the jury has retained an open mind in spite of prior publicity as to the course of this particular litigation. This Court feels that at the most the newspaper report now in question can only refresh the recollection of the jury as to what was already part of the public knowledge at the time of the original trial and sentence.'

There is not the slightest indication in the record that any member of the panel was prejudiced by any newspaper account. In fact, as previously stated, it does not appear that any juror read, or had knowledge of, any newspaper article relating to this case. The fact that some newspaper account might prejudice some one who could be, or was, a juror, is not sufficient to show that a juror who was drawn was so prejudiced.

Continuances and mistrials are within the discretion of the presiding justice. Cunningham v. Long, 125 Me. 494, 497, 135 A. 198; Collins v. Dunbar, 131 Me. 337, 162 A. 897; Casco Nat. Bank v. Shaw, 79 Me. 376, 10 A. 67; Graffam v. Cobb, 98 Me. 200, 56 A. 645; Rumsey v. Bragg, 35 Me. 116. In the absence of anything tending to show that this discretion was not properly exercised, the ruling is not subject to valid exceptions. Fitch v. Sidelinger, 96 Me. 70, 71, 51 A. 241. 'The chief test as to what is or is not a proper exercise of judicial discretion is whether in a given case it is in furtherance of justice. If it serves to delay or defeat justice it may well be deemed an abuse of discretion.' Charlesworth v. American Express Co., 117 Me. 219, 221, 103 A. 358, 359, see also State v. Bobb, 138 Me. 242, 25 A.2d 229; Bourisk v. Mohican Co., 133 Me. 207, 175 A. 345.

In the light of the rules stated in the foregoing cases, and after careful examination of the record, we fail to see any abuse of discretion of the part of the presiding justice in refusing to grant a continuance or to order a mistrial. In fact no second trial can be had in any case if truthful newspaper accounts of a former trial can be seriously taken as ground for continuance or mistrial, without some evidence of probable prejudice resulting. There must be 'palpable error' or 'apparent injustice' to make a discretionary ruling reviewable. Fournier v. Great Atlantic & Pacific Tea Co., 128 Me. 393, 148 A. 147. The right of exception arises only where there is clear abuse of discretion and the burden to prove such abuse rests on him who alleges it. Lebel v. Cyr, 140 Me. 98, 102, 34 A.2d 201.

Third Exception

The third exception was taken to the admission of certain testimony given by one Lawrence Minot a deputy sheriff who stated that on the morning of November 8, 1947 he was notified of a 'break' at Belgrade depot and that he went there and found a 'window jimmed' and 'money box gone.' This evidence was objected to on the ground that evidence was not admissible of any break in any place outside of the town of Winthrop. The Court admitted this evidence, however, as one event in a chain of circumstances which the County Attorney said he should prove, 'with the understanding that the guilty or innocence of this respondent as to any break in Belgrade is not an issue here.' The evidence was not offered to show that the respondent broke into the Belgrade depot. In fact, there was no mention, by deputy Minot, of any particular person breaking into it. He stated there was a break at Belgrade, and the State contended that this was but a chronological link in a one night's chain of events.

The State endeavored to show a criminal enterprise from the time the respondent started with one Thomas and one Hendley from Waterville. To prove this, the State used (1) the testimony of Thomas, an alleged accomplice, (2) a series of facts and circumstances by other witnesses tending to corroborate the testimony of the accomplice, and (3) admissions by conduct and statements of the respondent. It was admitted that Hendley was an incompetent...