State v. Jutras
Decision Date | 22 September 1958 |
Citation | 154 Me. 198,144 A.2d 865 |
Parties | STATE v. Joseph JUTRAS. |
Court | Maine Supreme Court |
Arthur Chapman, Co. Atty., Clement Richardson, Asst. Co. Atty., Portland, for plaintiff.
Theodore Barris, Douglas P. MacVane, Portland, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.
The respondent was tried before a jury upon a complaint charging him with the buying and receiving of stolen property of a value less than $100. R.S. (1954) c. 132, § 11. During the trial the respondent excepted to the exclusion of some testimony and to an instruction by the Court. The verdict was guilty and the respondent prosecutes his exceptions.
The State called as a witness one of the purloiners of the chattel who testified as to the theft of the article from Mid-Central Fish Company and as to the sale of the property to the respondent who had been advised before purchase, according to the witness, that the object had been stolen.
We reproduce the significant portion of the cross-examination of that witness:
'(State's counsel) I object.
'The Court: He has already testified to his convictions.
'(Defense counsel) I am asking, Your Honor, whether or not he was charged with breaking and entering the Mid-Central Fish.
'(State's counsel) I object.
'The Court: Excluded.
'(State's counsel) I object.
'The Court: Excluded.
'(Defense counsel) May I have an exception, please?
In State v. Turner, 1927, 126 Me. 376, 377, 138 A. 562, this Court held:
* * *'
From the portion of the record of the cross-examination quoted above it will be noted that defense counsel for the Court's reflection distinguished his questioning about a charge from an interrogatory concerning a conviction. The colloquy was broken by the 'Bench Conference.' We are deprived of any further interlocution. The bench conference was proposed by the Court without solicitation for defense counsel. Forthwith after the muffled parley came the ruling that the references to charges were improper and that records of convictions and those only with reference to credibility could be considered by the jury. The ruling as stated verbatim above following, as it did, defense counsel's distinction would imply that during the bench conference the topic of charges had been entertained and rejected to the exclusion of all inquiries save as to convictions. In strict propriety defense counsel should have thereupon formally injected the specific grounds of his objection into the record. But we are satisfied that the respondent because of the special circumstances is in fairness entitled to urge his exception and that the Court yielded to a like conviction in allowing the exception.
R.S. (1954) c. 113, § 114 reads as follows:
'No person is excused or excluded from testifying in any civil suit or proceeding at law or in equity by reason of his interest in the event thereof as party or otherwise, except as hereinafter provided, but such interest may be shown to affect his credibility, and the husband or wife of either party may be a witness.' (Italics supplied.)
In State v. Curcio, 1957, 23 N.J. 521, 129 A.2d 871, the Court quoted with approval from the earlier case of State v. Spruill, 1954, 16 N.J. 73, 78, 106 A.2d 278, 281, as follows :
In Page v. Hemingway Bros. Interstate Trucking Co., 1955, 150 Me. 423, 427, 114 A.2d 238, 240, this Court said
* * *
* * *
In Wigmore on Evidence, 3d Ed., the author states:
g 966 '* * * There is no doubt that the interest of a party or of a witness in the event of the cause is a circumstance available to impeach him: * * *.'
g 967 'It bears against a witness' credibility that he is an accomplice in the crime charged and testifies for the prosecution; and the pendency of any indictment against the witness indicates indirectly a similar possibility of his currying favor by testifying for the State.'
In a footnote (1) to the first clause of the above g 967, Professor Wigmore says:
'This is unquestioned; * * *.'
In the instant case the witness under cross-examination was a self-confessed accomplice of the respondent in the full sense of that term.
State v. Rosa, 1904, 71 N.J.L. 316, at page 318, 58 A. 1010, at page 1011, was a trial for murder and the following excerpts set forth the issue and the court ruling:
'One of the state's witnesses, named Conti, testified that while in the jail where the defendant was confined he overheard the latter telling two other prisoners that he (the defendant) had shot Benedetto and Demetrio. On cross-examination of this witness by Mr. Stagg, the defendant's counsel, the record presents the following:
'This reason for allowing the question was sufficiently, although in general terms, presented by counsel, and its exclusion was injurious to the defendant upon the merits of the case.' [71 N.J.L. at page 319, 58 A. at page 1011.]
In Alford v. United States, 1930, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, the petitioner had been convicted of using the mails to defraud. A witness had testified against him. The witness was serving a federal sentence. On cross-examination questions seeking to elicit the witness' place of residence...
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...Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 75 L.Ed. 624 (1931) (citations omitted), quoted in State v. Jutras, 154 Me. 198, 206, 144 A.2d 865, 868-69 (1958). [¶ 12] Although cross-examination of panel members is not necessarily constitutionally required, cf. Perna v. Pirozzi,......
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