State v. McKeough

• Decision Date: 28 February 1973
• Citation: 300 A.2d 755
• Parties: STATE of Maine v. Hugh McKEOUGH.
• Court: Maine Supreme Court

Page 755

300 A.2d 755

STATE of Maine v. Hugh McKEOUGH.

Supreme Judicial Court of Maine.

Feb. 28, 1973.

Joseph E. Brennan, Cumberland County Atty., Donald Grey Lowry, Asst. County Atty., Portland, for plaintiff.

Carl R. Trynor, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

In the late evening of October 4, 1971, a young lady who was walking on Park Street toward York Street in Portland was attacked by a male assailant. In the ensuing struggle the assailant produced a knife and the lady suffered a chest wound and a cut finger. While she was struggling with this assailant another male individual, an accomplice, made off with her purse. Subsequently she identified the Defendant as the assailant and he was arrested a few days later upon the lady's complaint.

After a probable cause hearing in the Ninth District Court of Maine Defendant was bound over to the next term of the Cumberland County Grand Jury.

On December 14, 1971, the Goard Jury returned an indictment for robbery against the Defendant charging him with violation of 17 M.R.S.A. § 3401. A jury trial followed in the Superior Court on January 26 and 27, 1972 and Defendant was found guilty of robbery and sentenced to serve no less than five nor more than ten years in the Maine State Prison at Thomaston.

Defendant, acting through his court appointed counsel, appeals to us from the jury verdict on the ground that the Justice's charge to the jury was erroneous in several regards. Defendant's counsel had failed to object to any part of the Justice's charge to the jury or to any omissions from that charge and had made no requests for additional instructions. Therefore, by his inaction at trial, he has failed to meet a condition precedent to his right to assign complaints concerning the Justice's charge as error on appeal. ¹ As we held recently in State v. Collins, Me., 297 A.2d 620 (1972) his claims of error are cognizable on appeal under M.R.Crim.P., Rule 52(b) only if the errors are 'obvious' and 'affecting substantial rights'. ²

Therefore, our examination of the record will be confined to a determination of whether the Justice's instruction contained seriously prejudicial errors tending to produce manifest injustice. ³

Absence of specific instruction as to intent to deprive permanently.

It is well settled that an intent to deprive permanently the owner of his property is an essential element of the crime of larceny ⁴ and also, of course, of robbery which is larceny committed by violence or by putting in fear, although neither statute makes specific mention of any requisite intent. 17 M.R.S.A. §§ 2101 and 3401; State v. Greenlaw, 159 Me. 141, 189 A.2d 370 (1963).

It is constitutionally mandated that every element of the crime charged must be proved beyond a reasonable doubt. In Re Winship, 307 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970).

Although intent to deprive permanently is not contained in the language of the statute the omission of a reference to this element in the Justice's charge is error.

In Greenlaw we found that it was reversible error to deny the Defendant's request for a specific instruction as to intent to deprive permanently and that the use in the charge to the jury of such expressions as 'feloniously stolen and taken', 'commit a larceny' 'steal the automobile, with the inent to commit larceny' were insufficient to avoid prejudicial error on the facts present there.

In our own case the Justice used similar language in his explanation of the crime of robbery. He read the robbery statute:

'Whoever, by force and violence or by putting in fear, feloniously steals and takes from the person of another property that is the subject of larceny is guilty of robbery . . .' (Emphasis added.) 17 M.R.S.A. § 3401.

He explained that the State charged that the Defendant 'feloniously did steal, take and carry away from Miss M-property which is the subject of larceny'. (Emphasis added.) He then defined larceny for the jury as necessarily including the stealing of the property of another. The Justice then went on to explain to the jury that the property must have been taken from the person of the other, that it must have been property which is the subject of larceny, and that it was taken by force and violence or by intimidation.

The Defendant-like the Defendant in Greenlaw-would have been entitled to a specific instruction on intent to deprive permanently if he had requested it, but no such request was made. When asked by the Presiding Justice, following the charge, if he had any requested instructions, Defendant's counsel replied that he had none.

The Justice's omission to instruct as to intent to deprive permanently was error but our concern now is to determine whether manifest error exists. Did the Defendant suffer serious prejudice as a result of the omission?

A comparison between the facts in Greenlaw and those in the case now before us reveals significantly different fact situations.

In Greenlaw, the two intoxicated Defendants interrupted a ride in a taxi by seizing the driver and telling him that they were armed. They demanded his money. One of the Defendants tried to force his way in behind the wheel from the driver's side, saying he was taking the taxi, and pushed the driver into the middle of the seat. The driver broke loose from the Defendants and escaped from the cab while an onlooker began shouting. The Defendants drove away in the cab and within an hour were found a half mile away asleep in the snow not far from the parked and empty taxi. They were charged with robbery of the taxi. The taxi was yellow with red fenders. On each side in 3 letters were the words 'Central Cab Company'.

In Greenlaw, at the close of the Presiding Justice's charge to the jury, Defendants' counsel requested a specific instruction that if the jury found that Defendants' intent was only to make a temporary use of the taxi they must find Defendants not guilty of robbery. The Justice denied this request.

It is obvious that a most vital issue in Greenlaw was whether the intoxicated Defendants really intended to deprive permanently the owner of the conspicuous and easily recognized taxi or whether this was in fact only a drunken escape from the scene of unsuccessful criminal activity.

The Court said:

'While in technical and juristic terms the Justice presiding academically and formally told of felonious stealing and larceny, as such, we are constrained to conclude that the instructions in their totality generate an irresoluble doubt as to the adequacy of the jury understanding of the law applicable to the fact of taking, here. The instruction requested by the respondents would have afforded an elucidation which under the circumstances must be deemed to have been necessitous and probably would have supplied definitive enlightenment unpossessed by the jury. There was prejudicial error and the exception must be sustained.'

(Emphasis added.) State v. Greenlaw, supra, 159 Me. at 149, 189 A.2d at 374.

It is clear from a reading of Greenlaw that under the particular circumstances of that case, nothing but a specific explanation of the meaning of intent to deprive permanently would have enabled the jury to evaluate the facts pertaining to that issue. The omission of a specific instruction on intent to deprive permanently was highly prejudicial in Greenlaw where serious fact problems concerning that element were present.

Such is not the case here. As the victim walked down the street at about 11:00 P. M. the Defendant and another young man who were sitting on a wall adjoining the sidewalk accosted her and asked her to tell them the time. She looked at her watch and responded to their inquiry. As she walked along she heard a person running behind her and in a moment the Defendant seized her around the neck. She turned and struggled with him, crying out for help, and during the struggle he stabbed her in the chest and she was cut on the finger when she tried to seize the Defendant's knife. During her struggle with the Defendant the other young man seized her purse. The two young men ran away with the purse and she never saw it again.

The Defendant denied any participation in the robbery and testified that he was alone in his home at the time the incident occurred.

We find that the strong disinclination which the courts have demonstrated toward setting aside convictions for trial errors which were not prejudicial to the Defendant extends to include failures to instruct specifically as to essential elements of crimes. Such failures to instruct have been measured by the same standards we ourselves have used when examining for manifest error-the presence or absence of serious prejudice.

In Claybrooks v. State, 50 Wis.2d 79, 183 N.W.2d 139 (1971) the Defendant was convicted of the statutory offense of armed robbery which included the necessary elements that the robber was 1) armed with a dangerous weapon and 2) that he attempted to conceal his identity. The Presiding Justice failed to instruct the jury as to these two elements of the crime and counsel for the Defendant declined the Court's invitation to submit a request for further instructions and made no objection to the instructions given. The Court on appeal recognized that even though no objections were made or requests submitted, the Court must take note of errors which are so fundamental as to deny the Defendant a fair trial. The Wisconsin Court concluded that although these two unexplained elements were essential, the evidence clearly established that the robbers were armed and that the Defendant attempted to conceal his identity. The Court said:

'We conclude that in the instant case the trial court committed error in failing to instruct on the essential elements of the crime to wit: that defendant was armed and that he attempted to conceal his identity. However, it is clear from the uncontroverted evidence...