State v. Sanborn

• Decision Date: 15 September 1961
• Citation: 173 A.2d 854,157 Me. 424
• Parties: STATE of Maine v. John B. SANBORN.
• Court: Maine Supreme Court

Page 854

173 A.2d 854

157 Me. 424

STATE of Maine v. John B. SANBORN.

Supreme Judicial Court of Maine.

Sept. 15, 1961.

Richard W. Glass, County Atty., Belfast, for the State.

William H. Niehoff, Waterville, for respondent.

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

SULLIVAN, Justice.

John B. Sanborn was by indictment accused of the offense of having on May 20, A.D.1956 feloniously bought, received and aided in concealing 27 listed articles of furniture which had been previously stolen by George Webbor from Reynolds Brothers, Inc. R.S. c. 132, sec. 11. Upon his arraignment Sanborn pleaded not guilty. A jury was empaneled and a trial was had to the extent of the presentation of the State's case and partial examination of the first defense witness when the presiding Justice spontaneously declared a mistrial. Respondent immediately objected to such direction by the Justice. Respondent was thereafter subjected to a second trial and punctually interposed a plea of double or former jeopardy. His plea was denied and he now prosecutes his timely exception to that unfavorable ruling.

There follows an abridgement of the significant evidence presented at the first trial.

In the spring of 1956 George Webber a next door neighbor of the respondent and an acquaintance through 14 years was working as a night employee at the furniture mill of Reynolds Brothers, Inc. Sanborn had visited Webber at night at the mill 3 or 4 times and had talked with the latter of stealing furniture from Webber's employer. About March, 1956 on a street the respondent solicited Webber to obtain for the former some furniture or parts from the mill. Webber protested: 'No, I will probably get caught.' Sanborn countered with the admonition: 'You be careful you don't get caught.' Webber was to be paid by Sanborn $3 or $4 for each article taken. During an estimated period of 2 months Webber had stolen several pieces of furniture from his employer, had taken them to his home and had sold all of them to Sanborn. Webber identified 3 checks acquired by him from the respondent in payment for certain of the purloined chattels. The checks were received in evidence. All the items stolen had been integral. Two were unfinished. 26 pieces of furniture were collocated in the courtroom at the trial and were marked seriatim State's Exhibits 1 through 26.

Webber identified Ex. 1 as a telephone bench manufactured by Reynolds Brothers, Inc. at its mill and stated that he had stolen some 3 or 4 telephone benches such as Ex. 1 and had sold them to Sanborn for $3 apiece.

Webber described Ex. 2, 3 and 4 as telephone benches made by the mill, testified he had stolen 4, 5 or 6 and sold them to Sanborn.

He identified Ex. 5 as a small table produced by the mill, said that he had stolen as many as 6 of such in March or April or May, 1956 and had sold them to Sanborn.

Webber recognized Ex. 6 through 17 as tables manufactured by the Reynolds mill.

Ex. 6 he termed a clover leaf table. He said that he had stolen several like objects from the mill and had sold them to Sanborn in March, April or May for $2.50 each.

Webber designated Ex. 7 as a clover leaf table and a product of the mill. He asserted that he had purloined several such and had sold them to Sanborn in March, April or May for $2.50 apiece.

State's Ex. 8 the witness called a clover leaf step end made by the mill. He related that he had abstracted several of the kind and had sold them to Sanborn for $2.50 each.

State's Ex. 9 the witness denominated a clover leaf step end and a product of the mill. He told that he had filched several like the exhibit and had sold them in March, April or May, 1956 to Sanborn for $2.50 apiece.

Webber labelled State's Ex. 10, 13 and 16 lamp, magazine or coffee tables produced by the mill. He had stolen several of such items and had sold them to the respondent for some $2 each.

Ex. 12, 14 and 17 the witness termed clover leaf step ends from the mill. He had pilfered several of their kind and had sold them in March, April or May, 1956 to Sanborn for $2.50 apiece.

Ex. 18, 19, 20 and 21 Webber classified as magazine racks with 2 steps and as products of the mill. He stated that he had stolen several such and had sold them to the respondent in March, April or May, 1956 for $3 each.

Ex. 22 the witness called a square table, 15 inches high and manufactured at the mill. In March, April or May he had purloined 2, 3 or 4 and had sold them to Sanborn for $2.50 apiece.

Ex. 23 the witness styled a corner table made at the mill. He admitted having abstracted 2 or 3 like articles and having sold them to respondent for $2.50 each.

Webber testified that Ex. 24 was probably a lamp table and magazine rack produced in the mill. He confessed that he had stolen several items of the kind and had sold them to Sanborn in March, April or May, 1956 for $2.50 each.

The witness swore that Ex. 25 was a desk or table made by the mill, that he had pilfered several of them and had sold them to Sanborn for $2.50 apiece.

Ex. 26 the witness named a table or school desk. He told of having filched several of such item in March, April or May, 1956 and of having sold them to Sanborn for $2.50 each.

The witness divulged that Sanborn was aware of Webber's thievery while the respondent was purchasing the furniture appropriated.

Webber in none of his testimony pronounced that Ex. 1 through 26 were the objects stolen and sold. He described the exhibits as facsimiles of the looted goods.

Sanborn by avocation was a furniture dealer. On May 20, A.D.1956 Pitt J. Smith who was likewise by subordinate occupation a furniture tradesman bought from the respondent Ex. 1 through 26 in the normal course of trade. Smith supplied to the court Sanborn's receipt for the purchase price paid by Smith for the articles. During the investigation of Webber's abstractions Ex. 1 through 26 had been traced by the sheriff's department to the possession of Smith who readily relinquished those articles to the authorities. Smith identified Ex. 1 through 26 in court and at the same time affirmed that the exhibits were in the same condition as when acquired by Smith from Sanborn.

Ronello Reynolds, director, president and treasurer of Reynolds Brothers, Inc., owner of the mill, related that the mill had missed articles from its inventories, once a week. The lost items had been present in the mill at night and gone on the following morning. This witness recognized Ex. 1 through 26 as first grade current products of the mill and not as samples. Samples, he explained, were made by hand rather than by machine. He averred that only he and his brother, Edward, had had the right to sell furniture from the mill. The witness had never sold any articles similar to Ex. 1 through 26 to either George Webber or Sanborn. The mill had sold only at wholesale and not at retail. Ex. 1 through 26 had all been manufactured since April 25, 1955 following a fire which had consumed a former mill on September 17, 1954. The witness explained that Ex. 1, 2, 3, 4, 22 and 24 had been finished at the mill but that Ex. 5, 6, 7, 10, 11, 14, 15, 16, 18, 19, 20 and 21 had been completed but not finished. He declared that he had never sold, given away or disposed of any class A-1 manufactured furniture which had not been completed with finish. Sanborn had sought several times without success to buy pieces of furniture from the mill. The witness placed a value upon each of Ex. 1 through 26 and described such articles as we shall note later in this opinion.

Edward Reynolds, production manager of the mill, corroborated the fact that Ex. 1 through 26 were the manufacture of Reynolds Brothers, Inc. and that he and his brother, Ronello, shared exclusively the authority to sell the mill products. The witness had never sold any complete articles to Sanborn with one negligible exception. The witness had not sold any complete items to George Webber or to anybody except to wholesale dealers.

Ex. 1 through 26, with the exception of Ex. 11, were offered by the prosecution without comment and were admitted in evidence by the Court over the objection of respondent's counsel who opposed because the items were not and had not been demonstrated to be the personal property described in the indictment.

Ex. 1 through 26 had been utilized by the State throughout the trial as models, replicas or standards and as typical products in their respective kinds from the mill. Wigmore on Evidence, 3rd. Ed., sec. 439, 791, 793.

'Rule 105. Control of Judge Over Presentation of Evidence.

'The judge controls the conduct of the trial to the end that the evidence shall be presented honestly, expeditiously and in such form as to be readily understood, and in his discretion determines, among other things,

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'(j) whether a witness in communicating admissible evidence may use as a substitute for oral testimony or in addition to it a writing, model, device or any other understandable means of communication, and whether a means so used may be admitted in evidence;' American Law Institute: Model Code of Evidence.

There had been no stated profession that Ex. 1 through 26 were some of the selfsame chattels which George Webber had stolen from the mill and had sold to Sanborn. The Reynolds did not assert that they recognized Ex. 1 through 26 as articles stolen by Webber or purchased by Sanborn although the brothers had declared that they had sold no such products to any persons other than dealers and had not sold such products in an unfinished state even to dealers. The Court voiced or assigned no determinant for his acceptance in evidence of Ex. 1 through 26 at the time of their admission. In the record we find no comment upon the fact that some of Ex. 1 through 26 had not been described in testimony to conform with any items of furniture designated in the indictment.

'In the case before us, the subject matter is a pine log, marked in a particular manner described. The...