State v. Sprague

• Decision Date: 04 June 1938
• Parties: STATE v. SPRAGUE.
• Court: Maine Supreme Court

199 A. 705

STATE

v. SPRAGUE.

Supreme Judicial Court of Maine.

June 4, 1938.

On Appeal and Exceptions from Superior Court, Aroostook County.

J. Bamford Sprague was convicted of manslaughter, and, from a denial of his motion for new trial on ground that the evidence was insufficient to warrant the verdict, he appealed and also took exceptions to the admission and exclusion of certain testimony.

Appeal dismissed, exceptions overruled, and judgment for the State.

Argued before DUNN, C. J., and STUR. GIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Franz U. Burkett, Atty. Gen., and George B. Barnes, Co. Atty., of Houlton, for the State. J. Frederick Burns, of Houlton, and Albert F. Cook, of Fort Fairfield, for defendant.

MANSER, Justice.

Respondent was indicted for murder and found guilty of manslaughter. Appeal was entered to denial of motion for a new trial upon the ground that the evidence was insufficient to warrant the verdict. Exceptions were also taken to the admission and exclusion of certain testimony.

The appeal will be first considered. The case, as developed by the State, was to the following effect:

Thomas Giggey, 38 years of age, robust and healthy in appearance, powerful of build, was on duty as a policeman in the town of Fort Fairfield on the evening of August 8, 1936. The respondent, in a restaurant and beer shop on Main Street, was intoxicated and troublesome. The officer, inspecting the premises in the performance of his duties, was requested to eject the respondent. Respondent refused to leave and slumped to the floor. The officer pulled him up and impelled him forward to the sidewalk. There the respondent turned and the two faced each other, standing close together. A crowd immediately collected and pressed toward the center of action. The respondent was resisting arrest. No witnesses saw all that actually took place, but suddenly the officer, addressing the respondent by his nickname, exclaimed, "Let go, Vance, or I'll hit you." This he repeated twice, at the same time reaching for his club, which he obtained with some difficulty, and then struck the respondent on the head with it, causing him to go down over the edge of the sidewalk. The police chief then appeared and the two officers took the respondent to the police station. On the way, on two or more occasions, the respondent used the expression, "Let go of me or I will tear your Christly guts out."

At the station, the officer exhibited to his superior a wound to his private parts, it being the inflamed lacerated head of the penis, from which blood was dripping. The officer continued on duty for several days, but the injured organ became infected. He was taken to the hospital and between that time and early in October the organ sloughed off. As a direct result of the injury, and from infected embolism, sepsis of the left lung developed, causing the death of the officer in November, 1936.

The respondent's version as to the occurrence on the sidewalk agrees with that of the State that the two men were facing each other, close together, and that the officer told the respondent to let go but "I just had my hands on him more to hold myself on my feet than anything else. If I had let go of him, I probably would have fell over."

Of the seven witnesses produced by the State or the respondent as to what took place at the time of the striking of the blows by the officer, six testified that the respondent's hands were not both in sight at the same time. The seventh said that both hands of the respondent were on the officer's shoulders at the time of the blow. The credibility of this witness was sharply attacked and the State argued that from his position it was impossible for him to see what he asserted to be the fact.

Another matter in controversy was as to physical handicaps of the respondent which it was claimed in defense rendered him incapable of the act charged. The evidence offered upon the point by the State was to the effect that the gripping power of the man's hands was undiminished.

The issue is not that the injury occurred in self-defense, but instead a denial that the respondent inflicted it. No evidence was offered to contradict the fact that the officer received a wound and died as a result of it.

It is the province of the jury to determine controverted issues of fact. In this case, the Court finds nothing to warrant interference with the result of its function in that respect.

It is urged that the crucial fact of the particular assault alleged by the State as the cause of death is not shown by any direct testimony. It depends entirely upon circumstantial evidence.

It has long been the rule in this State that all crimes may be proved by circumstantial evidence. State v. Hynes, 66 Me. 114. As was pointed out in State v. Richards, 85 Me. 252, 27 A. 122, 123:

"Several distinct circumstances, no one of which is conclusive in its nature and tendency, may be found so naturally associated with the fact in controversy, and so logically connected with each other, as to acquire from the combination a weight and efficacy that will be accepted as absolutely convincing."

Yet, as further said in the same case with reference to such evidence:

"its accuracy and soundness must be negatively tested by inquiring whether it excludes every other hypothesis than that of guilt."

Tested thus, then as remarked by the Court in State v. O'Donnell, 131 Me. 294, 161 A. 802, 803:

"When, considered as a whole, circumstantial evidence leads to a conclusion of guilt, with which no material fact is at variance, it is not, as a matter of law, inferior to direct evidence, and neither the court nor the jurors can conscientiously disregard it."

In the instant case, the Court is of opinion that the evidence is sufficient to sustain the verdict of the jury.

Exceptions.

The first exception is to the exclusion of the question, "What was said then by any members of the crowd which indicated the temperament of the crowd as this was happening?" The question was asked in cross-examination of a witness called by the State. He had testified that he was in the restaurant and had seen the arrest of the respondent who was then taken by the officer out to the sidewalk, where a crowd collected. The witness himself could not see all that happened outside because of the crowd. The members of this group had seen no part of what transpired in the restaurant. A considerable number of people were massed into the limited area of a sidewalk, and were hemmed in by buildings on one side and parked automobiles at the curb. The inquiry was not as to exclamations, outcries or declarations of cither of the participants, as in State v. Wagner, 61 Me. 178, or even the spontaneous outburst of a spectator. The question appeared to call for an expression of opinion or a conclusion reached by persons in the vicinity, regardless of their opportunity to observe the actual events, and under a situation which demonstrated that such observation was practically impossible. It was not offered in proof of the happening of an actual occurrence but, at best, to the mental reaction of individuals in a crowd present when an officer was attempting to arrest an intoxicated person. Counsel for the respondent contend that certain acts of the officer, enumerated in the brief, aroused the anger and resentment of the crowd who observed them. The record discloses that no suggestion of this character was made to the Court as a basis for the admission of the testimony and, further, the record of subsequent testimony in defense, does not support these claims of counsel. Accordingly, it appears that the Court is asked to rule that assumed or non-existent facts should be the foundation for statements made by bystanders, regardless of their opportunity for observation.

It is needless to engage in fine differentiations with respect to the hearsay rule, res gestae, spontaneous exclamations or the verbal act doctrine. Much depends upon the circumstances in a given case, and the trial Judge is called upon to exercise his discretion in determining the admissibility of testimony under such circumstances. Roach v. Great Northern R. Co., 133 Minn. 257, 158 N.W. 232.

With respect to the particular evidential rules here invoked, and this exercise of judicial discretion as to cross-examination, the comment of Wigmore in his work on "Evidence" (Vol. 3, Par. 1750) is of interest. It does not appear that any prejudicial error was committed.

The second exception is to the admission of statements made by the respondent himself following his...