State v. Mckrackern.

• Decision Date: 27 March 1945
• Citation: 41 A.2d 817
• Parties: STATE v. McKRACKERN.
• Court: Maine Supreme Court

41 A.2d 817

STATE

v.McKRACKERN.

Supreme Judicial Court of Maine.

March 27, 1945.

Exceptions and Error from Superior Court, Sagadahoc County.

William B. McKrackern was convicted of assault, and he appeals and brings exceptions.

Exceptions overruled, appeal dismissed, and judgment entered for State.

Ralph O. Dale, Co. Atty., and John P. Carey, both of Bath, for the State.

Clarence Scott, of Old Town, and Hayden Covington, of Brooklyn, N. Y., for respondent.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

HUDSON, Justice.

On exceptions and appeal from a conviction for assault on an indictment based on Sec. 27 of Chap. 129, R.S.1930, as amended by Sec. 6 of Chap. 92, P.L.1933. The statute as amended reads as follows: ‘Whoever unlawfully attempts to strike, hit, touch, or do any violence to another however small, in a wanton, wilful, angry, or insulting manner, having an intention and existing ability to do some violence to such person, is guilty of an assault; and if such attempt is carried into effect, he is guilty of an assault and battery, and any person convicted of either offense when it is not of a high and aggravated nature, shall be punished by a fine of not more than $100 or by imprisonment for not more than 6 months or by both such fine and imprisonment; and when the offense is of a high and aggravated nature, the person convicted of either offense shall be punished by a fine of not more than $1,000, or by imprisonment for not more than 5 years, when no other punishment is prescribed.’

The words above italicized constitute the amendment of 1933.

The justice below denied the respondent's motion for a directed verdict and the denial constitutes one alleged error in the bill of exceptions. That, however, will be considered in discussion of the appeal, for ‘denial of respondent's motion for a directed verdict and the appeal from the denial of the trial judge to set the verdict aside * * * present like questions and ‘accomplish precisely the same result.” State v. Smith, 140 Me. 255, 283, 37 A.2d 246, 258. Also see State v. Bobb, 138 Me. 242, 245, 246, 25 A.2d 229, 231.

The Appeal.

The only question raised before this court on the appeal ‘is whether in view of all the testimony the jury was warranted in believing beyond a reasonable doubt that the respondent was guilty.’ State v. Smith, supra, on page 286 of 140 Me., and at page 259 of 37 A.2d, and cases therein cited.

In State v. Lambert (a homicide case), 97 Me. 51, at page 52, 53 A. 879, at page 880, our Court in speaking of the functions of the jury stated: ‘We may say at the outset that in considering the weight of this testimony, depending, as it does, for its effect upon the credibility of the witnesses, we cannot put ourselves in the place of the jury, nor usurp that province of deciding questions of fact which the law imposed upon them. Their conclusions, if warranted by the evidence, are to stand. We have before us only the pages of a printed record, aided somewhat by an inspection of the exhibits which were introduced in evidence at the trial. The jury had before them the living, speaking witnesses. The degree of credence properly to be given to the story of a witness may depend much upon his appearance upon the stand, upon his air of candor and truthfulness, upon his seeming intelligence and honesty, upon his apparent want of bias or interest or prejudice. The want of such characteristics may render testimony of little value. And the appearance of such characteristics, or the want of them, is not always transcribed upon the record of a case. If the story of a witness is seemingly credible and probable, and not inconsistent with other admitted or proven facts, the listener has much better opportunity to judge correctly of its truthfulness than a reader has. From the bare record we might be in grave doubt as to which of two conflicting statements is true. The jury, seeing the witnesses, might have no reasonable doubt. And it follows that in cases like the one under consideration, as in all others, the jury must be the final arbiters of questions of fact, when the evidence in support of their conclusions, considered in connection with all the other evidence, is of such a character, such a quality, and such weight as to warrant them in believing it.’

It is contended this offense was committed in the village of Topsham in the town of Topsham. Topsham is northerly of and across the Androscoggin River from the town of Brunswick. A state highway leads over the bridge to Topsham and to points further north in the state. On its westerly side in the village of Topsham there is a sidewalk with a fence on the west consisting of posts driven into the ground, to which are attached two lengthwise wire cables. From a plan introduced it would appear that the upper cable is approximately three feet above the ground. Employment of violence it is asserted was started on the sidewalk in the vicinity of a highway culvert several hundred feet northerly of Pop's Place, a small store near the north end of the bridge. The land westerly of the fence at the place of claimed attack, unoccupied by any building or buildings, descended steeply some distance down into a ditch, where the violence ceased. Northerly of this place were certain buildings westerly of the highway, in one of which lived Deputy Sheriff Carver. The first of these buildings in the bend of the highway almost wholly obscured vision from uptown. On the easterly side of the highway there were no buildings immediately across, but a short distance northerly on the east side were Bushy's filling station (sometimes called the Topsham filling station), a street entering from the east, a bank, Whittier's filling station, and still further north on both sides of the highway were other buildings comprising a portion of the village of Topsham. There was no sidewalk on the easterly side of this highway in the vicinity of the place of alleged assault.

The respondent, 28 years old, married and living in Bowdoinham, was an ordained minister of the Gospel, a member of Jehovah's Witnesses. In the forenoon he left home to go to Brunswick to attend to some business at the O. P. A. office and he was on his way home at the time of the occurrence.

Mrs. Cloutier, the complaining witness, who lived in Topsham, was a married woman then five months along with child. Her husband worked at the Bath Iron Works, and in the latter part of the afternoon she started afoot to meet him on his return home. The offense is claimed to have been committed at approximately 4:30 o'clock in the afternoon of January 22, 1944. The evidence shows that then there was a considerable accumulation of snow and that along this fence there was quite an embankment of it, probably occasioned by plowing of the sidewalk.

The State's version of what took place follows: Mrs. Cloutier was walking southerly on this sidewalk on her way to Brunswich, and when in the vicinity of the culvert saw this man coming northerly on the sidewalk about to meet her. They were strangers. She testified: ‘And as I was walking along on the sidewalk I met this man, and as I met him supposedly to pass him he put one hand in between my legs and on my private parts. * * * And he put one arm around me. * * * And he pushed his head like that (illustrating) and threw me back into the snow. * * * When I got over in the bank he had one hand over my mouth, and one hand still on my private parts.’

On cross-examination the following questions and answers appear:

‘Q. What did he do? Where did he put you then, when he had his arm around you and his left hand on your private parts? A. He lifted me up and threw me over the fence.

* * *

‘Q. * * * Do you mean to tell me tht he lifted your feet clear up over the fence? A. Of course, he did.

‘Q. And you didn't say anything until you got down in the ditch. Is that right? A. I hollered.

‘Q. You hollered when he put his arm around you. Is that right? A. Yes.

‘Q. And did you scream? A. I did, yes.

‘Q. Loud? Did you say anything to him? A. I told him to leave me alone.

* * *

‘Q. What were you doing with your hands? A. I tried to push him away.

* * *

‘Q. Did you push him back? A. I tried to push him back.

‘Q. Did you push his arms away from your private parts? A. I tried to. * * * I tried to get away from him.

* * *

‘Q. * * * Your first opportunity to talk to this defendant was when-first opportunity to say anything to him was when? A. At first I said ‘Leave me alone’.

‘Q. And when was that, before you were thrown over the fence? A. Yes.

* * *

‘Q. And after the defendant threw you over the fence did he continue to have his arms around you when you fell down in the ditch? A. He did.

‘Q. And then you both went over the fence at the same time. Is that right? A. That's right.

* * *

‘Q. When was it that he had his arm over your mouth? A. After we landed in the snow.

* * *

‘Q. How did he get his hand off of your face? A. I managed to push it off after a while.

* * *

‘Q. And what did you say to him then? A. I said ‘I wish you would leave me alone; I am going to have a baby’.

‘Q. And what did he say then? A. He says ‘Oh, all right’, and he helped me up.'

She also testified that after the assault he helped her back up to the sidewalk. Her leg was injured as it went down through the crusted snow and her neck was bruised. It did not appear that anyone saw the claimed attack, but immediately after Mrs. Cloutier had gotten back to the sidewalk she saw Mr. Keough, a State witness, approaching on it from the bridge. She told him what had happened, pointed to the respondent then proceeding up the sidewalk a short distance away, and inquired if he knew who the man was. He said, ‘No, but I will find out.’ He then followed the respondent to a point in front of the postoffice where a Navy bus stopped, from which Mr. White, a guard at the Bath Iron Works, got off. Keough requested his aid. For a while both followed the...