State v. Navarro

• Decision Date: 12 November 1932
• Citation: 163 A. 103
• Parties: STATE v. NAVARRO.
• Court: Maine Supreme Court

163 A. 103

STATE

v. NAVARRO.

Supreme Judicial Court of Maine.

Nov. 12, 1932.

Exceptions from Superior Court, Cumberland County.

Rocco Navarro was convicted of aiding and assisting prisoners, who had escaped from jail, to escape and go at large, and he brings exceptions.

Exceptions overruled and dismissed in part and sustained in part, and judgment of conviction and sentence arrested.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Walter M. Tapley, Jr., of Portland, for plaintiff.

Jacob H. Berman and Edward J. Berman, both of Portland, for the State.

DUNN, J.

The respondent was tried and convicted upon an indictment under a statute which provided as follows:

"Whoever forcibly rescues a prisoner lawfully detained for any criminal offense; * * * or in any way aids him to escape, * * * or with a design to aid the prisoner in his escape, harbors; or with such design in any way assists such prisoner who has escaped, or is at large, shall be punished. * * *" R. S., c. 133, § 17.

The indictment alleged that the respondent, at Portland, on the 15th day of April, A. D. 1932, "did feloniously aid and assist John J. O'Donnell and Emery Leo to escape and go at large, said John J. O'Donnell and said Emery Leo being then and there prisoners who had escaped from lawful imprisonment in the Cumberland County Jail, said O'Donnell and Leo being lawfully detained upon an appeal to the Law Court, from the sentence of Arthur Chapman, Judge of the Superior Court, for the offense of robbery, which offense was within the jurisdiction of said Superior Court" (with conclusion in usual form).

The case is up on exceptions. These go (1) to certain portions of the judge's charge to the jury; (2) to the refusal of requests to charge the jury; (3) to the overruling of a motion made at the close of the evidence, for the direction of a verdict; (4) to. the denial, after verdict, of a motion in arrest of judgment.

For the sake of convenience, the question of law which the exception to the refusal to direct raises, will be considered-first. The motion apparently was made upon the ground that a verdict for the government would be unsupported by sufficient evidence. Assuming the integrity of the premise, contention that the motion ought to have been granted is sound. There is, however, a fault in the premise. The record—a jury could have found—demonstrated beyond a reasonable doubt, that around 6 o'clock in the afternoon of April 15, 1932, the respondent, having been told that some prisoners had just escaped, drove to the jail in an automobile; and, about four hours later, the presence of the respondent with the two prisoners mentioned in the indictment, on a side road, some seven or eight miles away, the three being engaged in assisting the owner of an automobile mired in the road in extricating it, the car being ahead of that of the respondent, which also was mired.

The essence of the indictment, at this state, is compressed into feloniously aiding and assisting prisoners who had escaped, to escape and go at large.

"Aiding an escape is any overt act which is intended to assist, and which is useful to assist, an attempted or completed departure of a prisoner from lawful custody before he is discharged by due process of law." 21 C. J. 827.

The case against the respondent, with reference to the factual situation, was entirely one for the determination of the jury. The respondent takes nothing by this exception.

Exception to the overruling of the motion in arrest shall have attention next. Exception will lie, where error appears on the face of the record, notwithstanding that the question might have been sooner raised in a different way. State v. McCormick, 84 Me. 566, 24 A. 938; State v. Crouse, 117 Me. 363, 104 A. 525; State v. Beattie, 129 Me. 229, 151 A. 427; State v. Kopelow, 126 Me. 384, 138 A. 625; State v. Berry, 112 Me. 501, 92 A. 619. The motion contained seven objections to the indictment, each insisted as founded upon a defect; in some instances, two objections made a similar point.

The first and second objections, in substance and in necessary effect, are that, though the indictment alleges that prisoners who had escaped from lawful imprisonment were feloniously aided and assisted to escape and go at large, yet there is absence of averment of the ingredient of design, on the part of the respondent, to aid and assist such...