State v. Schumacher
| Decision Date | 05 November 1953 |
| Citation | 149 Me. 298,101 A.2d 196 |
| Parties | STATE v. SCHUMACHER. |
| Court | Maine Supreme Court |
James Blenn Perkins, Jr., Boothbay Harbor, for plaintiff.
Christopher S. Roberts, Rockland, for defendant.
Before MERRILL, C. J., and THAXTER, FELLOWS, WILLIAMSON, TIRRELL, and WEBBER, JJ.
This case is here on exceptions to the overruling of a demurrer filed in the Superior Court for the County of Lincoln.
The case originated by complaint to the Lincoln Municipal Court. The complaint on its face tends to show a violation of the State Liquor Law so-called. Upon the complaint a warrant was issued by the Judge of the Lincoln Municipal Court.
The charging part of the complaint is as follows:
The so-called record as sent forward from the Lincoln Municipal Court to the Superior Court is not an independent record as is proper, see State v. Houlehan, 109 Me. 281, at page 283, 83 A. 1106, but the printed record of the case as it is now before us shows that the record forwarded to the Superior Court was made on the back of the complaint and warrant. This record shows that the respondent, having been brought before the Lincoln Municipal Court upon this complaint and warrant, was arraigned and pleaded not guilty. Hearing was waived by the respondent, whereupon he was adjudged guilty and sentenced. An appeal to the Superior Court from this finding was filed and completed.
At the May 1953 Term of the Superior Court for the County of Lincoln the County Attorney for the County of Lincoln nolle prossed that part of the above complaint as refers to a prior conviction. Thereafter respondent filed a demurrer which was joined by the County Attorney. This demurrer was acted upon by the Presiding Justice who overruled the demurrer and gave judgment for the State. To this ruling the respondent excepted and the exceptions were allowed by the Presiding Justice. The Presiding Justice then sentenced the respondent, and the clerk was authorized to accept bail, the case being then marked 'Law' on the docket.
The general rule in criminal cases is that upon an appeal from a magistrate or lower court to the Superior Court the matter comes before the Superior Court for trial de novo. This means that the matter comes forward on the complaint and further upon the plea of the respondent, the words 'de novo' applying to the actual trial of the case. The withdrawal of the plea made in the lower court must be by and with the consent of the Presiding Justice. In the instant case the Presiding Justice did not directly give to the respondent leave to withdraw his former plea, the County Attorney stood by, made no objections to the filing of the demurrer, and as a matter of fact joined it and made that the issue. The Presiding Justice took before him the merits of the demurrer and ruled thereon. In doing this this Court holds that he, the justice presiding, impliedly gave his consent to the respondent to withdraw the former plea of not guilty.
In State v. Whitten, 90 Me. 53, 37 A. 331, the court heard a demurrer which was filed in the court above without withdrawal of the plea in the court below and overruled the same, stating, however, that it was an irregular proceeding 'but possibly permissible, inasmuch as the demurrer was duly joined by the prosecuting officer.'
In State v. Thomas, 90 Me. 223, 38 A. 144, the demurrer was filed by consent of the parties and consent was granted to plead over, it not appearing whether that consent was granted by the court or was agreed to by the County Attorney.
In State v. Haapanen, 129 Me. 28, 149 A. 389, Judge Dunn, later Chief Justice Dunn, held that a motion to quash came too late after plea in the municipal court unless leave was granted prior to the filing of the motion without withdrawal of the plea or the withdrawal of the plea by consent of the court.
Having the above citations in mind and holding that the respondent impliedly was given the right to plead anew, we now turn to the merits of the demurrer.
The complaint was intended to be drafted under the provisions of R.S.1944, c. 57, Sec. 66, the pertinent parts of which read as follows:
The above quoted Section was amended, Public Laws of Maine 1951, c. 137, the pertinent provisions of which read as follows:
This above quoted amendment is divided into two parts and controls the sale of intoxicating liquor. The first part prohibits the sale by a person licensed to sell liquor by himself, his clerk, servant or agent in this state, in violation of law. This part of the statute is to prohibit a sale of intoxicating liquor by those licensed to sell liquor in this state in violation of law. It may be readily seen that although one has a license to sell intoxicating liquor in this state, one may do so in violation of law. For instance, a person might be licensed to sell...
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State v. Howe
...respondent had entered a plea of not guilty in the District Court, which plea came forward on the appeal and stood, State v. Schumacher, 149 Me. 298, 300, 101 A.2d 196, and had neither been withdrawn nor had leave been requested or granted to move to quash without such withdrawal. Upon this......
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State v. Melanson
...acting upon the special plea in bar the presiding Justice impliedly consented to the withdrawal of the 'not guilty' plea. State v. Schumacher, 149 Me. 298, 101 A.2d 196. Compare State v. McClay, 146 Me. 104, 116, 78 A.2d 347 and State v. Lawrence, 146 Me. 360, 82 A.2d The respondent's case ......
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State v. Hamilton
...the failure to raise such an objection by an appropriate plea before arraignment was a waiver of the objection. State v. Schumacher, 149 Me. 298, 300, 101 A.2d 196, 197 (1953); State v. Child, 158 Me. 242, 252, 182 A.2d 675, 681 (1962); Glassman, Maine Practice, Sec. There is another reason......
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State v. Goodchild
...to which the respondent excepts and the exceptions were allowed by the Presiding Justice. As we stated in State v. Schumacher, 149 Me. 298, at page 300, 101 A.2d 196, at page 197: 'The general rule in criminal cases is that upon an appeal from a magistrate or lower court to the Superior Cou......