State v. Rist

• Decision Date: 04 April 1931
• Citation: 154 A. 178
• Parties: STATE v. RIST.
• Court: Maine Supreme Court

154 A. 178

STATE

v. RIST.

Supreme Judicial Court of Maine.

April 4, 1931.

Exceptions from Superior Court, Penobscot County.

Richard Rist was convicted of illegal possession of intoxicating liquors with intent to aid and assist in their sale, and he brings exceptions.

Exceptions overruled.

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

Albert G. Averill, Co. Atty., of Old Town, for the State.

Arthur L. Thayer, of Bangor, for respondent.

FARRINGTON, J.

On exceptions. The respondent on complaint issuing from the Bangor municipal court on July 7, 1930, was charged with illegal possession of intoxicating liquors and with intent to aid and assist in their sale. Having been there tried and found guilty, he appealed to the superior court for Penobscot county, where at the September term, 1930, he was again found guilty. The exceptions on which the case comes to this court are three in number and will be considered in the order in which they appear in the bill:

1. During the course of cross-examination of a deputy sheriff, a state witness, the following question was asked by respondent's attorney: "Are there houses on the other side of Patrick Street as you go up?" (Patrick Street was the street on which the respondent lived and on which the liquor was found.) And the answer was, "Yes." At this point the following colloquy ensued:

"The Court: What is the object of this?

"Mr. Thayer: The object is, Your Honor, to show there are many people living in that section who have access to this particular shed which is opposite a vacant tenement.

"The Court: Because there is a number of houses there is no evidence of access. I would not waste the time of going into the fact that this street has a lot of houses on it; nothing to do with this case.

"Mr. Thayer: I want to also show, Your Honor, that it not only has houses, but it has houses which have been searched.

"The Court: You will not be allowed to put that testimony in."

An exception was seasonably noted and allowed.

The respondent was not prevented from showing that other people had access to the shed. He did not attempt to show that fact, although the witness had already stated that there were houses on the other side of the street. To have permitted the respondent to show that houses on that side of the street had been searched could have had no bearing on the question of access or as to whether or not he was guilty of the crime with which he was charged, and such evidence was properly excluded.

2. During the recross-examination of another state's witness, the following question was asked by the respondent's attorney: "Down in the lower Court you testified previously you could not remember where that took place?" And the answer was: "No, you asked me where the arrest was made. I don't know as I know where it was made." Then the question followed, "I asked you in what court you were convicted in?" And the answer was, "I didn't remember at that time." The court then said, "I don't think that is material," and then the following:

"Mr. Thayer: It is material only, Your Honor, as to the credibility of this witness.

"The Court: You can only ask him if he has been convicted of crime, and he says he has.

"Mr. Thayer: I am now asking him if in his previous testimony, under oath, he hasn't denied knowing where he was convicted."

To the exclusion of this question exceptions were noted and allowed.

The witness had stated that in the lower court he did not remember in what court he was convicted. This answer might well have been repeated to the question last asked. We can see no prejudice to respondent which could possibly have resulted from the exclusion of a question which, in practically the same form, had already been answered.

3. On cross-examination of another witness for ...