State v. Jenness.

• Decision Date: 14 December 1948
• Citation: 62 A.2d 867
• Parties: STATE v. JENNESS.
• Court: Maine Supreme Court

62 A.2d 867

STATE

v.JENNESS.

Supreme Judicial Court of Maine.

Dec. 14, 1948.

Exceptions from Superior Court, Kennebec County.

Peter B. Jenness was convicted of assault and battery and of unlawfully concealing a deadly weapon and from denial of his motion to set aside the verdict, he appeals and brings exceptions.

Exceptions sustained.

James L. Reid, County Atty., of Augusta, for Kennebec County, and the state.

McLean, Southard & Hunt, of Augusta, for respondent.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS, and MERRILL, JJ.

FELLOWS, Justice.

This is an indictment in two counts, one count for assault and battery and the second for unlawfully concealing a deadly weapon. The verdict of the jury was guilty on both counts.

The case comes before the Law Court from the Superior Court in Kennebec County, on appeal from denial of motion to set aside the verdict, and on bill of seven exceptions.

The evidence in this affair is complex and conflicting in its details, but, briefly stated, the jury probably found: that the respondent, Peter B. Jenness, and his wife Katherine M. Jenness, had been having some marital difficulties. They lived in Augusta, but on August 15th, 1947, the wife, Katherine Jenness, was visiting at the cottage on Lake Cobbosseecontee belonging to her mother and stepfather, Mr. and Mrs. Ralph T. Park. The respondent went to the Park's cottage to talk with his wife, carrying, as the State claims, binoculars in his hand and a homemade ‘black jack’ in a pocket of his pants. He went into the kitchen and asked for an opportunity to speak to his wife. He was told that he must speak to her outside. When Mrs. Jenness came out of doors the respondent seized his wife's hand and attempted to take a ring, or rings, from her fingers. Mrs Jenness shouted ‘Mother-Dad,’ and Mr. Park came out of the cottage and attempted to stop the quarrel between them by pulling Mrs. Jenness away. The respondent Jenness then grabbed Mr. Park by his shirt. Park testified, concerning this, that ‘he let go of her and grabbed hold of my shirt with one hand and reached for his hip pocket with the other. I grabbed for his hand and before I did he had hold of the club, and I grabbed it away and hit him and it turned him around. He made a lunge for me and I hit him again, and I saw his head was cut, and I threw the club down.’ The respondent denied that he was the assailant, and denied that he had the weapon with him. The respondent insisted that he was first to be struck, and by someone from behind. What actually was said, what actually happened, and in what order were the happenings, depends upon whether two witnesses for the state or the testimony of the respondent, are to be believed. There was apparently much ill will between the various members of this family, and the guilt or innocence depends on the true facts. It is evident that the jury did not believe the respondent in any particular. No injury was suffered by Mr. Park beyond the torn shirt. The injuries to the respondent, however, were more or less severe.

First Exceptions

For the purpose of affecting the credibility of respondent, the respondent was asked, subject to objections and exceptions, the following questions:

‘Were you convicted on September 30, 1930 of illegal possession of intoxicating liquor? A. I was.’

‘On February 23, 1933 were you convicted of the crime of conspiracy in the possession and sale of intoxicating liquor? A. Yes.’

‘On March 2, 1935 were you convicted of the crime of illegal sale of intoxicating liquor? A. I was.’

‘On June 18, 1935 were you convicted of the crime of sale of intoxicating liquor? A. I was.’

The objections of the respondent are based on the ground that the foregoing questions and answers are in violation of Chapter 265 of the Public Laws of 1947, amending Revised Statutes, 1944, Chapter 100, Section 128, which statute, as amended, provides as follows:

‘No person is incompetent to testify in any court or legal proceedings in consequence of having been convicted of an offense; but such conviction of a felony, any larceny or any other crime involving moral turpitude may be shown to affect his credibility.’ (The line through ‘such’, and the italics, illustrate the changes in the statute made by the 1947 revision.)

By this amendment the legislature plainly intended that only convictions for a felony, or for any larceny, or for a crime involving ‘moral turpitude,’ can be shown to affect credibility. Convictions for offences which are not larcenies or felonies or do not involve ‘moral turpitude’, cannot be shown.

This brings directly before the Court the question of whether these sales and the illegal possession of intoxicating liquor are crimes involving moral turpitude. The second question relating to conspiracy, involves a felony, and was admissible. State v. Pooler, 141 Me. 274, 280, 43 A.2d 353. His conviction of a felony may be shown by his own cross-examination. State v. Knowles, 98 Me. 429, 57 A. 588; Public Laws 1947, Chapter 265.

The two words ‘moral turpitude’ have been defined as ‘inherent baseness or vileness of principle;’ ‘the quality of a crime involving grave infringement of the moral sentiment as distinguished from mala prohibita.’ Webster's New International Dictionary. Generally speaking, crimes malum in se involve moral turpitude, while most offenses that are unlawful only because made so by statute, do not. ‘Moral turpitude’ implies something immoral in itself, regardless of its being punishable by the law. It is an act of baseness, vileness, or depravity in the private or social duties which man owes to his fellow men or to society in general, contrary to the customary rule of right and duty between man and man. It is something done contrary to justice, honesty, modesty and good morals. The word ‘moral,’ in the phrase ‘moral turpitude,’ seems to be nothing more than emphasis on the word ‘turpitude.’ See 27 Words and Phrases, Perm. Ed., 1940, ‘moral turpitude;’ 41 Corpus Juris 212; 14 Am.Jur. 761, Sections 11-14; 27 Cyc. 912; 2 Bouvier's Law Dictionary, Rawle's Third Revision.

Driving an automobile while intoxicated involves moral turpitude, but not the driving when merely under the influence of liquor. ‘[Intoxication] in the public...