State v. Mottram

• Decision Date: 03 November 1959
• Citation: 156 A.2d 383,155 Me. 394
• Parties: STATE of Maine v. Robert H. MOTTRAM.
• Court: Maine Supreme Court

Page 383

156 A.2d 383

155 Me. 394

STATE of Maine v. Robert H. MOTTRAM.

Supreme Judicial Court of Maine.

Nov. 3, 1959.

Arthur Chapman, Jr., Co. Atty., Clement P. Richardson, Co. Atty., Portland, for appellant.

Walter Casey Portland, for appellee.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

TAPLEY, Justice.

On exceptions and appeal. The respondent was convicted of the crime of larceny at the January Term, 1958 of the Superior Court, within and for the County of Cumberland. The indictment upon which he was tried contained two counts, the first count charging the crime of larceny and the second count alleging a former conviction of a felony. The jury in returning its verdict reported a special finding that the State had proven the allegation of prior conviction. The case is before this court on exceptions, seasonably taken and properly perfected, attacking the admission of testimony. A motion for a new trial was filed and, after hearing before the Justice below, the motion was denied. Respondent appealed from the denial.

Exceptions

Both exceptions relate to the testimony of a State Police Officer and are concerned with the recital by the officer of a conversation he had with the respondent. The first exception has to do with the following testimony:

'Q. In cash? A. Yes, sir, and that they then went to the Camden National Bank and had a notarized bill of sale made out by Mr. Wadsworth. I think I then questioned Mr. Mottram as to how many cars he had owned in the past two years. He related that he had----

'Mr. Hanscomb: I object. What does it have to do with this? It is immaterial. What difference does it make? We are concerned with a charge against this man that he stole a certain car.

'Mr. Richardson: I think the method of transaction and mode of transaction would have some bearing on the present transaction.

'The Court: I will speak with counsel at the bench, please. (Bench Conference)

'Mr. Richardson: Will you read the question, Mrs. Payne? (The question was read by the Reporter, also the portion of the answer as given)

'Q. Why not proceed?

'The Court: In order to make a ruling we will have to make sure there is a question.

'Q. Officer, you have stated you asked Mr. Mottram how many cars he owned in the last year or two? A. Yes, sir.

'Q. Did he tell you? A. Yes, sir.

'Mr. Hanscomb: I object.

'The Court: Admitted.

'Mr. Hanscomb: Exception, please.

'The Court: Yes.

'A. He told me he had owned nine cars in the last two years.

'Q. Did you have other conversation about the cars? A. Yes, sir.

'Q. What was the conversation? A. I asked Mr. Mottram if he had obtained a notarized bill of sale for each of the nine cars he had purchased in the past two years.

'Q. What did he say? A. 'No, sir'.

'Q. Did he say if he had for any of the cars he had purchased? A. No, sir. I further asked him if he had gone to the meticulous manner of going to the bank and having the bill of sale notarized when he purchased a car, and he said 'No'.'

The second exception is based on objection to the admission of the testimony contained in the following quotation from the record:

'Q. During the course of the interview did you ask Mr. Mottram if he took the '54 Cadillac to New York State? A. Yes, sir.

'Q. What did he say?

'Mr. Hanscomb: I object. It is not material.

'The Court: Will you read the question, please? (The question was read by the Reporter)

'Mr. Hanscomb: How is it material?

'Mr. Richardson: It is the vehicle that is charged in this larceny.

'Mr. Hanscomb: Mr. Mottram had a bill of sale and was driving a registered vehicle in his own name.

'Mr. Richardson: This is not the time for argument.

'The Court: I think I should inquire the purpose of the question. (Bench Conference)

'Q. Sergeant Holdsworth, did you ask this respondent if he drove this 1954 two-tone Cadillac to New York State? A. Yes, sir; on two different occasions.

'Q. Did he tell you when he drove it to New York, if he did?

'Mr. Hanscomb: I object.

'Mr. Richardson: I will rephrase it.

'Q. What did he say when you asked if he drove it to New York?

'The Court: Admitted.

'Mr. Hanscomb: Exception, please.

'A. I asked him on two different occasions.

'Q. Why don't you relate the conversation?

'Mr. Hanscomb: I assume my objections and exceptions will go to all this line without my getting up each time.

The Court: The record shows your statement.

'A. I asked him if he had taken this car to New York State and the first time I asked him he said 'No'. The second time I asked him he said 'Yes'. The reason he said 'No' the first time was that he was not going to get hooked on a federal rap.'

The State offered testimony of the State Police Officer for the purpose of presenting for jury consideration a conversation between the officer and the respondent. The conversation pertained to the car that was alleged to have been stolen with the respondent explaining how he came in possession of the automobile. The answers given by the respondent were elicited by questions on the part of the officer. The State attempted to show through statements made by the respondent that of the nine cars he had owned during the last two years the transaction involving the alleged stolen car was the only one in which a bill of sale was notarized.

Objection was made to the admission of some further conversation the respondent had with the officer having reference to the taking of the alleged stolen car to New York State. The respondent's statement to the officer was that he first denied taking the car to New York State but later admitted doing so. The reason he gave for his denial was that he feared an admission would subject him to a 'Federal rap.'

The testimony brought to our attention by these exceptions is part of statements made by respondent as a result of inquiries by an investigating officer. These isolated portions, when taken in light of and in conjunction with the rest of the statements made by the respondent, became proper testimony for jury consideration as part of the State's case. 'The general rule is, that all a party has said, which is relevant to the question involved, is admissible in evidence against him.' State v. Gilman, 51 Me. 206, at page 223. See 22 C.J.S. Criminal Law § 730. The relevancy of respondent's statements is apparent.

The presiding Justice was not in error in admitting the testimony.

Appeal

The respondent filed and argued a motion for a new trial which was denied. The motion brings into contention (1) that the evidence was insufficient upon which to base a verdict of guilty; (2) that the presiding Justice without right allowed an amendment to the count in the indictment alleging prior conviction; (3) that the State failed to prove the allegation of prior conviction.

It would serve no useful purpose to recite in detail that portion of the record which warranted the factual finding of the jury that respondent was guilty of the larceny of an automobile. A careful review of the record shows sufficient evidence upon which the jury was justified in returning a verdict of guilty. State v. Hudon, 142 Me. 337, 52 A.2d 520; State v. Smith, 140 Me. 255, 37 A.2d 246.

The indictment was returned at the January Term, 1958. On the twenty-sixth day of the term the case was opened before a drawn jury. Previous to the commencement of the trial, but on the same day, the State presented a motion to amend that portion of the indictment alleging previous conviction. The amendment sought change of date of the prior conviction from the 15th day of June, 1952 to the 17th day of June, 1952. This amendment was allowed by the presiding Justice without objection on the part of the respondent. Not only was the amendment allowed without objection but the docket entry reflects the fact that the respondent consented to the amendment.

The allowance of the amendment raises the question as to whether or not the Court had the authority to amend the indictment even though the amendment was consented to by the respondent. The Legislature has seen fit to confer upon the Court the authority to amend an indictment as to form only. The pertinent part of Sec. 14, Chap. 145, R.S.1954 reads:

'* * * any criminal process may be amended, in matters of form, at any time before final judgment. Any complaint, indictment or other criminal process for any offense, except for a felony, may be amended in matters of substance, provided the nature of the charge is not thereby changed.'

In order to conform to this statutory authority, the amendment must affect a matter of form and not of substance. The question before us is whether or not the changing of the date in the count in the indictment from the 15th day of June to the 17th day of June is a substantive change or one of form.

'Amendments to an indictment which in effect change the nature or grade of the offense charged go to the substance of the indictment and cannot be made or ordered by the court. Such amendments would infringe the constitutional right of the accused to a presentment or indictment only by a grand jury; and while the time of the commission of an offense is ordinarily a matter of form, there are instances in which time becomes a matter of substance, in which event it cannot be made the subject of amendment by the court.' 27 Am.Jur., Indictments and Informations, Sec. 117, page 677.

'It is the general rule, too, that the courts have the power to authorize amendments correcting erroneous allegations in indictments as to the time of the offense, when time is not of the essence of the crime.' 27 Am.Jur., Indictments and Informations, Sec. 118, page 679.

In State v. Bartley, 92 Me. 422, 43 A. 19, an allegation of former conviction was attacked by demurrer. The court in general terms alleged that James Bartley had been convicted in the County of Piscataquis as a common seller under the laws for the suppression of drinking houses and tippling shops. The Court said on page 426 of 92 Me., on page 20 of 43 A....