State v. Saba

• Decision Date: 05 August 1942
• Citation: 27 A.2d 813
• Parties: STATE v. SABA et al.
• Court: Maine Supreme Court

27 A.2d 813

STATE

v. SABA et al.

Supreme Judicial Court of Maine.

Aug. 5, 1942.

Exceptions and Appeal from Superior Court, Oxford County.

Linwood Louis Saba and Stanley J. Korbett were convicted of breaking, entering and larceny, and they bring separate appeals and exceptions.

Appeals and exceptions sustained, verdicts set aside, and new trials ordered.

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

Theodore Gonya, Co. Atty., of Rumford, for the State.

Arthur L. Thayer, of Bangor, for respondent Linwood Louis Saba.

Gordon Stewart, of South Paris, for respondent Stanley J. Korbett.

MURCHIE, Justice.

This case presents separate appeals by two, out of four, persons charged with crime in a single indictment who were tried together, it not appearing whether the other two have been either apprehended or tried. The appeals were taken from the refusal of the justice presiding in the trial court to set the verdicts aside on separate general motions for new trial. Two of the exceptions relate to the charge. One of these alleges a misdirection to the jury; the other, erroneous refusal to give a requested instruction. A third exception involving an evidence ruling requires no consideration in view of the result.

The indictment alleges a breaking, entering and larceny at Rumford in the nighttime on September 29, 1940. The breaking and entering and larceny were adequately proved but there was no eye-witness to the crime and the only way in which the respondents were connected with it was by evidence showing that they had access to, or possession of, goods answering the description of some of those stolen in the break some time thereafter, including a particular cigarette carton which was definitely proved to have been in the warehouse when the break was made, and that they had been heard at an earlier time discussing a proposed trip to Rumford where, it is stated in evidence, the respondent Saba told the respondent Korbett "that he had a place to go."

The exceptions relative to the charge may be considered together. Respondents requested an instruction, in substance, that to convict the respondents it would be necessary for the State to prove that one or both of them "were present at Rumford on the night alleged in the indictment, and took an active part in the breaking and taking". The stated exception to the charge was to the use of the words "they would not have to be found physically present at that time", i. e., at the time of the breaking and taking. The quoted words do not appear in the charge, but the justice presiding at the trial did instruct the jury that the question to be considered was "whether or not these two respondents or either of them participated, not necessarily by actual presence, but were they a party to the breaking and entering and larceny", and again "whether or not these two men, or either one of them participated, not by physical presence necessarily, but did they participate in this breaking and entering and larceny in any degree."

It would be highly technical to hold that this misquotation should defeat the right of the respondents to relief if the instruction intended to be complained of was erroneous in law. The exception was "noted before the jury", as required by Rule 18 of the Rules of Court. Opportunity was given to the justice presiding to correct the error in his charge, if it was error, and was inadvertent, to satisfy the purpose of the rule as declared in McKown v. Powers et al., 86 Me. 291, at page 295, 29 A. 1079, and the issue is herein determined as if the words actually used in the charge were properly recited in the exception.

The requested instruction was properly refused regardless of the question as to whether proof of the physical or actual presence of the respondents at the breaking and taking was a necessary part of the crime alleged. The definiteness of the time requirement alone justified the refusal. The law is clear that while a definite time must be alleged in any indictment, proof need not be that the crime charged was in fact committed on the particular day named. State v. Baker, 34 Me. 52; State v. Williams, 76 Me. 480. Disregarding the time element, however, the requested instruction raises the identical question intended to be raised by the exception alleging the charge to be erroneous in authorizing the jury to find the respondents guilty although not actually or physically present at the time and place of the crime, and decision of the cause must rest in the propriety or impropriety of such instruction.

The proper rule of law is that to constitute one as a principal in the commission of a felony, he must be proved to be present either actually or constructively at the time and place it was committed. The issue of actual presence is necessarily simple. The limits of constructive presence are more or less uncertain. In Commonwealth v. Knapp, 9 Pick., Mass., 496, 20 Am.Dec. 491, as in 16 C.J. 126, § 114-b, and 22 C.J.S., Criminal Law, § 86b, p. 154, illustrations are given which indicate that one who is watching at a proper distance and station "to prevent a surprise" or "to favor, if...