State v. Rowe

• Decision Date: 20 February 1968
• Citation: 238 A.2d 217
• Parties: STATE of Maine v. Forrest Anthony ROWE.
• Court: Maine Supreme Court

Page 217

238 A.2d 217

STATE of Maine v. Forrest Anthony ROWE.

Supreme Judicial Court of Maine.

Feb. 20, 1968.

William H. Clifford, Jr., County Atty., Charles H. Abbott, Asst. County Atty., Auburn, for appellant.

Berman, Berman & Berman, by Jack H. Simmons, Lewiston, for appellee.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

Forrest Anthony Rowe, appellant, at the June 1967 session of the Grand Jury for the County of Androscoggin, was indicted for violation of 17 M.R.S.A. § 2107, the indictment charging him with the embezzlement of money in the amount of one hundred twenty-five ($125.00) dollars belonging to his employer, one Willie Blanchette, doing business as Bill's Sunoco Station situated at the intersection of East Avenue and Sabattus Street in the City of Lewiston. The time of the offense is stated to be March 5, 1967. At trial, after the State had offered strong proof of his guilt, appellant was the only witness in his own defense intimating that another named person was the perpetrator of the crime involving the missing funds. He was convicted and now appeals.

Our embezzlement statute upon which appellant's conviction is founded reads in pertinent part as follows:

' § 2107. Embezzlement or fraudulent conversion; receiver liable. If an officer, agent, clerk or servant of a person, copartnership or corporation, except an apprentice or a person not having attained his 16th birthday, embezzles or fraudulently converts to his own use, or takes and secretes with intent to do so, without the consent of his employer or master, any property of another in his possession or under his care, by virtue of his employment;

* * * he is guilty of larceny and shall be punished

accoringly. * * *' Motion for new trial or in the

alternative for a judgment of acquittal.

At the close of the State's case, the appellant moved for judgment of acuqittal on the grounds that there was insufficient proof at that stage of the trial to sustain a conviction. Maine Rules of Criminal Procedure, Rule 29. After denial of his motion, appellant took the stand and offered evidence in defense. Under the corresponding federal rule, the introduction of testimony for the defense constitutes a waiver and an abandonment of that motion. Colella v. United States, C.A.1st, 1966, 360 F.2d 792, 802, cert. den. 87 S.Ct. 65, 385 U.S. 829, 17 L.Ed.2d 65; United States v. Manos, C.A.3d, 1965, 340 F.2d 534; Mosca v. United States, C.A.9th, 1949, 174 F.2d 448, 451. Similarly, under the practice existing before the adoption of the Maine Rules of Criminal Procedure, an exception to the denial of a motion for a directed verdict made at the end of the State's case was waived on introduction of evidence by the respondent. State v. Rand, 1960, 156 Me. 81, 86, 161 A.2d 852, 855; State v. Johnson, 1950, 145 Me. 30, 34, 71 A.2d 316, 318. The accused lost nothing, however, under the previous rules, by not renewing his motion for directed verdict at the close of all the evidence, if he appealed from the court's denial to set the verdict aside and grant a new trial, because both the motion and the appeal accomplished precisely the same result. State v. Rand, supra; State v. McKrackern, 1945, 141 Me. 194, 197, 41 A.2d 817, 818; State v. Smith, 1944, 140 Me. 255, 283, 37 A.2d 246, 258. Our present motion for acquittal under Criminal Rule 29(a) M.R.Cr.P. supplants the former motion for directed verdict.

The new criminal rules effective since December 1, 1965 have not abrogated the accused's right to test the sufficiency of the evidence to support a verdict of guilty, but by rule 29(b) these rights have been extended to permit the motion for acquittal if made at the close of all the evidence to be renewed after verdict of guilty, or if not so interposed, to be made for the first time after such verdict. In the instant case, the record reveals that the defendant did not move for acquittal after the close of all the evidence, but did simultaneously with his notice of appeal file his motion for new trial or in the alternative for judgment of acquittal. Nowhere in the record however does it appear that the court acted on the dual purpose motion for new trial or acquittal.

The foundation must be laid in the trial court for appellate review of the claim of insufficiency of the evidence to support the verdict. Under the old rules, there had to be a bill of exception based upon the denial by the presiding justice of a motion by the accused for a directed verdict or an appeal predicated upon the denial of his motion for new trial. State of Maine v. Bey, 1965, 161 Me. 23 at 25, 206 A.2d 413, 415. The new rules did not dispense with these prerequisites. Indeed, Rule 37(a), M.R.Cr.P., provides that 'The defendant may appeal from the judgment by filing a notice of appeal with the clerk. An appeal from a judgment preserves for review any claim of error in the record including any claim of error in the denial of a motion for a new trial, the denial of a motion for judgment of acquittal, or the denial of a motion in arrest of judgment.' (Emphasis supplied). In the instant case, there was no denial by the presiding justice of defendant's motion for new trial or for acquittal; henceforth there was no preservation for review of the issue of the sufficiency of the evidence to support the verdict and in this posture of the case that question would not normally and properly be for appellate consideration.

The appellant however in the court below was represented by court-appointed counsel who has carried the appeal to this Court. After the filing of his notice of appeal, the appellant, the State and the presiding Justice have dealt with the case as though the stated motions had been denied and the issue of the sufficiency of the evidence had been properly preserved for appeal. Being mindful that justice may require that we notice on appeal plain error affecting substantially the rights of an accused under the principle stated in State v. Wright, 1929, 128 Me. 404, 148 A. 141, we have chosen to and have responsibly reviewed and considered the issue of the sufficiency of the evidence, notwithstanding the procedural lapse which ordinarily would have foreclosed the appellant from appellate consideration. See, State v. MacDonald, Me., 1967, 229 A.2d 321; State v. White, Me., 1966, 217 A.2d 212.

The points of appeal in reference to the sufficiency of the evidence are as follows:

(Specifically) 'The State failed to prove, beyond a reasonable doubt, all of the elements of the crime as defined by statute; in that

(a) the State failed to prove that the respondent was over sixteen (16) years of age;

(b) the State failed to prove that the respondent was not an apprentice;

(c) the State failed to prove that more than $100 was stolen;

(d) the State failed to prove an intention of fraudulent conversion;'

(Generally) 'The evidence was not sufficient to explain, beyond a reasonable doubt, every other reasonable hypothesis except that of the respondent's guilt', and 'the State failed to prove, beyond a reasonable doubt every

circumstance upon which a conviction could rest.' Proof that

appellant at time of alleged embezzlement was over

16 years of age and not an apprentice.

The State concedes that there is no testimonial averment in the evidence to the effect that the appellant had attained his 16th birthday or was not an apprentice at the time when the embezzlement took place. When the Legislature declared what kind of embezzlement or fraudulent conversion shall be deemed larceny in an officer, agent, clerk or servant of a person, copartnership or corporation, 17 M.R.S.A. § 2107, it excepted from the reach of the statute apprentices and persons less than sixteen years of age. The law of embezzlement is statutory. It sprang from attempts to reach situations not covered by the law of larceny and is a sort of statutory larceny and what persons may be guilty thereof depends entirely as to whether they come within the class of persons described in the statute either expressly or by necessary implication. 2 Bishop on Criminal Law, §§ 318 and 325; State v. Cates, 1904, 99 Me. 68, 58 A. 238; State v. Snow, 1934, 132 Me. 321, 323, 170 A. 62. Embezzlement is larceny committed by a certain class of persons, without a trespass. State v. Thomes, 1927, 126 Me. 230, 137 A. 396.

The instant indictment stated that the accused was not an apprentice and that he had attained his sixteenth birthday. Thus the statutory exception contained in the enactment clause of the statute was properly negatived as may have appeared necessary under our previous criminal practice. State v. Walton, 1873, 62 Me. 106, 109. See also State v. Keen, 1852, 34 Me. 500; State v. Gurney, 1853, 37 Me. 149; State v. Webber, 1926, 125 Me. 319, 322, 133 A. 738, 741.

But as indicated by Form 9 of the Appendix of Forms, Glassman, Maine Practice, pages 453, 454, indictments under 17 M.R.S.A. § 2107 need not negative the statutory exceptions of apprentices and persons under sixteen years of age. Rule 58 M.R.Cr.P. ordains such practice as legally sufficient. This is in recognition of the fact that the age of the accused and his status as a non-apprentice are not in legislative contemplation ingredients of the statutory offense.

In Williams v. United States, 78 App.D.C. 147, 138 F.2d 81, 82, 153 A.L.R. 1213, the Court ruled that

'In determining whether the exception is in fact a part of the description of the offense we must consider first whether the act in itself, without the exception, is ordinarily dangerous to society or involves moral turpitude. If so, it does not seem unjust to compel the defendants to offer evidence to justify their conduct * * *. Therefore, in a situation where the facts relating to the exception are difficult for the State to obtain and are at the same time peculiarly within the knowledge of the defendants, the exception is usually considered as a defense or...