State v. Lambert

Decision Date04 November 1908
Citation104 Me. 394,71 A. 1092
CourtMaine Supreme Court


Exceptions from Superior Court, Cumberland County.

Thomas L. Lambert was convicted of larceny, and he excepts. Exceptions overruled.

The defendant was indicted for the larceny of "one horse of the value of $200, one wagon of the value of $100, and one harness of the value of $10."

Tried at the January term, 1908, superior court, Cumberland county. The jury found the defendant guilty. The defendant excepted to several rulings made by the presiding justice during the trial, and also excepted to an alleged expression of opinion by the presiding justice. It appears from the bill of exceptions that "the notes of the official stenographer taken at the trial of this indictment were lost in the fire which destroyed City Hall (Portland) on January 24, 1908, so that it is impossible to make exact quotations either from the evidence or the charge."

The case is stated in the opinion.


Joseph E. F. Connolly, Co. Atty., for the State.

John B. Kehoe, for defendant.

WHITEHOUSE. J. At the January term, 1908, of the superior court of Cumberland county, the defendant was found guilty by the jury of the larceny of a horse, wagon, and harness, the property of George A. Lufkin, on the evening of Sunday, September 15, 1907. The case comes to the law court on exceptions to the rulings of the presiding judge admitting and excluding certain evidence during the progress of the trial, and to the alleged expression of opinion by the presiding judge upon issues of fact, in contravention of section 97 of chapter 84 of the Revised Statutes.

Eugene Groves, who was indicted at the same term as an accomplice and pleaded guilty to the charge, appeared as a witness for the state, and testified that the defendant came to his house with a team Saturday evening September 14th, and remained there overnight; that the next evening, at the defendant's request, he rode with him to Walnut Hill Church, and saw the defendant Lambert drive away from the horse sheds back of the church with the Lufkin team; that thereupon they drove along the road some distance, Lambert driving the Lufkin team and Groves driving the other; that Lambert then stopped and gave him $2 and a pint of whisky, and told him to go homo, and that Lambert then drove off with the Lufkin team.

Other witnesses testified for the state that they met these two men riding together in the same team that day towards Falmouth corner. One witness testified that he met them riding in separate teams on the road from Walnut Hill Church; that he identified the Lufkin horse on the road that day, and recognized Lambert as the driver of it.

The defendant testified, inter alia, that his residence at that time was in Tyngsboro, Mass., and that his business was buying and selling goods, including horses. He admitted that he was with Groves on the day of the larceny, and that in the afternoon they drove in a "roundabout way" to the electric cars at Falmouth Foreside, where they separated, and that he, the defendant, then went on to Portland by the electric cars, and left for Boston on the steam cars, arriving there between 9 and 10 o'clock. No part of the Lufkin team was afterwards found.

1. At the trial, Deputy Sheriff Foley testified that he arrested the defendant on an electric car coming from Yarmouth to Portland October 3, 1907. The county attorney inquired if the defendant was armed at the time of the arrest. The defendant's counsel objected to the question, but before the court could rule upon it, the witness promptly answered that the defendant was armed with a revolver. The court denied the request of the defendant's attorney to have the testimony stricken out, and the witness testified further as to the details of the arrest, and stated the defendant had the revolver in his right-hand overcoat pocket, and that it was loaded.

The defendant admitted in cross-examination that he was coming from Groves' house at the time of the arrest, and had then learned from Groves' wife, for the first time, that Groves was under arrest, but she did not know upon what charge.

Upon this state of facts, it is the opinion of the court that there was no error on the part of the presiding judge in declining to strike out the testimony. The defendant had just been informed that his accomplice was under arrest. There was no apparent occasion for any legitimate use of the revolver by the defendant that day, and, if it was not loaded and carried for the purpose of aiding him to escape by intimidating any officer who might recognize him and attempt to arrest him, the defendant had full opportunity to explain for what purpose he did have it. "It is to-day universally conceded," says Mr. Wigmore, "that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself." 1 Wigmore on Ev. § 276; State v. Frederic, 69 Me. 400. The possession of tools suitable for effecting an escape is also deemed an incriminating fact which may go to the jury. State v. Duncan, 116 Mo. 288, 22 S. W. 699; Clark v. Com. (Ky.) 32 S. W. 131; State v. Palmer, 65 N. H. 216, 20 Atl. 6. And evidence that the defendant had a revolver under his pillow when arrested, and that he resisted arrest, was held admissible in People v. Burns, 67 Mich. 537, 35 N. W. 154. So, in a prosecution for picking a pocket, it is competent to show that the accused when arrested had a billy on his person. People v. Machen, 101 Mich. 400, 59 N. W. 664.

In the case at bar it was for the jury to estimate what weight and value should be given to the evidence excepted to as an indication of the...

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16 cases
  • State v. Steen
    • United States
    • North Carolina Supreme Court
    • June 8, 1923
    ... ... to testify (though the contrary is supported by authority), ... but he must speak of his own knowledge and not merely from ... what others have told him, for this would be no more than ... reputation of reputation, or hearsay. State v ... Lambert, 104 Me. 394, 71 A. 1092, 15 Ann. Cas. 1055; ... Reid v. Reid, 17 N. J. Eq. 101; Douglass v ... Tousey, 2 Wend. (N. Y.) 352, 20 Am. Dec. 616, and note; ... 10 R. C. L. 954 ...          "It ... is not enough that the impeaching witness professes merely to ... state what he has ... ...
  • Martinez v. State, 20163.
    • United States
    • Texas Court of Criminal Appeals
    • May 17, 1939
    ...47 S.E. 510; Campos v. State, 50 Tex. Cr.R. 102, 95 S.W. 1042; Cabrera v. State, 56 Tex.Cr.R. 141, 118 S.W. 1054; State v. Lambert, 104 Me. 394, 71 A. 1092, 15 Ann. Cas. 1055, and especially reference is made to the notes thereunder on "Admissibility of Evidence that Accused was armed Arres......
  • State v. Cox
    • United States
    • Maine Supreme Court
    • December 16, 1941
    ...270, 54 A. 728), even although an inference may be drawn from an allusion to some obvious and indisputable fact. State v. Lambert, 104 Me. 394, 400, 71 A. 1092, 15 Ann.Cas. 1055; State v. Jones et al., 137 Me. 137, 16 A.2d There is no merit in this exception. The 17th exception is to a part......
  • State v. Bachelder
    • United States
    • Maine Supreme Court
    • June 26, 1979
    ...238 A.2d 217 (1968); State v. Jones, 137 Me. 137, 16 A.2d 103 (1940); State v. Mathews, 115 Me. 84, 97 A. 824 (1916); State v. Lambert, 104 Me. 394, 71 A. 1092 (1908). Insofar as the second incident is concerned, we find that the Justice below could have easily explained his remark if reque......
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