State v. Mann.

• Decision Date: 22 October 1948
• Citation: 61 A.2d 786
• Parties: STATE v. MANN.
• Court: Maine Supreme Court

61 A.2d 786

STATE

v.MANN.

Supreme Judicial Court of Maine.

Oct. 22, 1948.

Exceptions from Superior Court, Oxford County.

William W. Mann was convicted in the superior court of drunken driving after appeal from conviction in Norway Municipal Court, and he brings exceptions.

Exceptions overruled.

Robert T. Smith, of South Paris, for the State.

Theodore Gonya, of Rumford, for respondent.

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

FELLOWS, Justice.

This case is before the Law Court on respondent's exceptions to the charge of the presiding justice. In addition to the five portions of the charge complained of, the bill of exceptions makes the complaint, warrant, docket entries, report of evidence, and the entire charge a part of the bill. The exceptions are overruled.

The respondent was first tried and found guilty in the Norway Municipal Court upon complaint of operating a motor vehicle on a public highway while under the influence of intoxicating liquor. Upon appeal he was again tried in the Superior Court for Oxford County, and the jury returned a verdict of guilty.

The record shows that the State's case was based upon the testimony of a State Police Officer who made the arrest in the evening of June 17, 1947, and the testimony of a Deputy Sheriff who saw respondent at the time of arrest. This evidence for the State consisted of the identification of respondent as driver, the general appearance and actions of respondent indicating an intoxicated condition manner of talking and statements made by respondent, opinions of the officers, and the physical tests made. The defense consisted of testimony of the respondent (who admitted taking three drinks that evening at a dinner some time before arrest), who denied that he was under the influence, and also the testimony of two men (who had been with the respondent that evening) who denied that respondent was or appeared to be under the influence of liquor.

At the conclusion of the charge of the justice presiding the respondent excepted to certain portions, which he claims were erroneous and prejudicial.

Exception 1.

‘You have in this case the opinion of Mr. Conant, and the opinion of another officer, the man at the jail, as to the man's condition. Mr. Conant is a police officer, a State Police Officer, employed, like many others, by the State to enforce the laws, to see that the general public in its proper and legal use of the highways in protected by those who ignore or violate the law. Mr. Conant tells you and gives it as his opinion that the man, the respondent here, was under the influence of intoxicating liquor.’

Exception 2.

‘The jail keeper, another officer, a deputy sheriff of this county, sworn to uphold the laws of this State, tells you that in his opinion this respondent was under the influence of intoxicating liquor when he was brought to the jail. Does he know what he is talking about? Has he had that experience, which is that of an ordinary officer, to judge the condition of people and judge the condition of this respondent?’

The respondent complains that the foregoing extracts from the charge were indirect ‘expressions of opinion’ as to the credibility of the witnesses, and placed ‘a judicial halo over the heads of the two officers.’ We fail to see that these comments of the presiding justice were erroneous, even standing alone, and they certainly were not erroneous or prejudicial when the whole charge is examined and considered. State v. Jones, 137 Me. 137, 16 A.2d 103; Benner v. Benner, 120 Me. 468, 115 A. 202.

There was no ‘OBVIOUS ATTEMPT TO SUGGEST THE HONESTY of the law enforcement officers, as distinguished from the interest of the respondent’ as in State v. Brown, 142 Me. 16, 45 A.2d 442, 445, nor is there a direct or indirect expression of opinion as prohibited by Revised Statutes (1944), Chapter 100, Section 105. The province of the jury to pass upon credibility was not interfered with. State v. Smith, 140 Me. 44, 33 A.2d 718. There were no argumentative comparisons, as appear in the cases cited by respondent: Strader v. United States, 10 Cir., 72 F.2d 589; Minner v. United States, 10 Cir., 57 F.2d 506. It does not follow that there is an expression of opinion because interrogatories were addressed to the jury. State v. Day, 79 Me. 120, 125, 8 A. 544; State v. Mathews, 115 Me. 84, 97 A. 824. There was no speaking in a manner implying that the words were ‘entitled to obedience.’ State v. Jones, 137 Me. 137, 140, 16 A.2d 103. In fact, the complete charge appears to be an impartial and judicial statement by the justice who presided, of conflicting claims made by capable attorneys for the State and the respondent. The jurors were left free to use their own judgment as to all matters of fact, and were so instructed. Whatever the emphasis, or whatever the tone, used by the presiding justice, it cannot now be known or considered. If the respondent felt that the justice in his charge ‘spoke daggers', the record discloses that there were no ‘daggers' used.

Exception 3.

‘This law was enacted, Mr. Foreman and members of the panel, for the protection of the men and women and children who are legally and properly upon the highways. These laws were enacted and placed on the statute books to protect the general public, you and I, and we have no option but to take the law as we find it.’

This instruction was not improper. It was not argumentative. It stated only what is well known to every person. It was also proper notice to some unreasoning or thoughtless juror, who might be inclined, for personal reasons, to dislike the law, that its enactment wass a vital necessity.

Exception 4.

‘It is important again that you should agree, whatever your verdict may be, so that when you come into this Court there will be a unanimous verdict, as there must be, in order to settle the case finally. That is why you are allowed, Mr. Foreman and members, to retire to your room by yourselves with no one else present to discuss the case which you have heard. It may be it has made different impressions on different individuals on the jury. You should sit down as reasonable men and women and if there is any difference of opinion try to reconcile your opinions; try to see the other person's point of view, so that you will finally agree on a verdict and bring it into this Court and end once and for all the litigation that is involved; because if you fail to agree, Mr. Foreman and members of the panel, at some other term of Court before another jury, the same facts must be presented to them for settlement, to men and women who are not any better qualified than you are to settle the question. So you should, if there is a disagreement, discuss it with...