State v. Sutkus

• Decision Date: 07 December 1935
• Citation: 182 A. 15
• Parties: STATE v. SUTKUS.
• Court: Maine Supreme Court

182 A. 15

STATE

v. SUTKUS.

Supreme Judicial Court of Maine.

Dec. 7, 1935.

Exceptions from Superior Court, Oxford County.

Tony Sutkus was convicted by jury of assault and battery with intent to kill and slay while armed with a dangerous weapon, and he brings exceptions.

Exceptions overruled.

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

Matthew McCarthy, County Attorney, of Rumford, E. Walker Abbott, of South Paris, for plaintiff.

Albert Beliveau and Arteas E. Stearns, both of Rumford, for defendant.

HUDSON, Justice.

On exceptions. The respondent stands jury convicted of an assault and battery with intent to kill and slay while armed with a dangerous weapon. The presiding justice denied his motion for a new trial, to which exception was taken. Instead, his remedy was to appeal. R.S. 1930, c. 146, § 27; State v. O'Donnell et al., 131 Me. 294, 161 A. 802; State v. Dodge, 124 Me. 243, 127 A. 899. Without particular comment, however, it may be stated that, although the ruling on the motion is not properly before us, we have carefully examined the evidence and found it sufficient to warrant the verdict.

Another exception presents a question of law, thus arising: The state produced the complainant. He was cross-examined at length as to what he testified in the municipal court. At the opening of the defense, respondent's attorney said: "I would like to have the record show that the testimony by Tony Rogers" (this complainant) "at a preliminary hearing as shown by the transcript of evidence I hold in my hand is a correct transcript of the testimony he gave at that hearing." The county attorney so admitted. The court asked: "You will read it?" Respondent's counsel answered: "I will read it in testimony" and did. The transcript itself was not then offered. At the conclusion of the evidence and before argument, it was. The state's objection was sustained, to which ruling the respondent's counsel excepted. We perceive no merit in this exception. While the state's attorney agreed that the transcript might be read to the jury, his agreement did not extend to its admission as an exhibit.

The defense contends that had it been admitted, it could have been used by the jury in retirement in comparing his testimony on the stand with that given in the lower court. Had this been a legally taken deposition (as for instance under section 19, c. 146, R. S. 1930) and, as such, had been received in evidence, the respondent could not then, as a matter of right have had it "delivered to the jury, on their retiring to consider of their verdict," for it would have been a matter of discretion, the exercise of which in the absence of its abuse would not have been a legal ground of exception. Whithead v. Keyes, 3 Allen (Mass.) 495, 498, 81 Am. Dec. 672; also see Burghardt et al. v. Van Deusen et al., 4 Allen (Mass.) 374, 378; Farnum v. Pitcher, 151 Mass. 470, 476, 24 N.E. 590; Melanefy v. Morrison, 152 Mass. 473, 476, 26 N.E. 36; Krauss et al. v. Cope, 180 Mass. 22, 61 N.E. 220; Annawan Mills, Inc., v. Mangene, 237 Mass. 451, 454, 130 N.E. 77.

In State v. Caldwell, 181 N. C. 519, 106 S.E. 139, it was held not error to exclude from the jury room statements of respondents made before a coroner.

In People v. Dowdigan et al., 67 Mich. 92, 34 N.W. 411, a new trial was ordered, where the court at the request of the jury permitted it to take into the jury room the written evidence of the deceased complaining witness.

In State v. Lowry, 42 W.Va. 205, 24 S.E. 561, 564, it was held improper to permit the jury to take out depositions in behalf of the accused, but permissible to order any portions of such depositions reread to it. Likewise, a signed dying declaration, which has been received in evidence, may not as a matter of right be taken into the jury room. Dunn v. People, 172 Ill. 582, 50 N.E. 137, 138. The court said:

"The written statement in question assimilated so nearly to a deposition that all of the reasons which have by text writers and courts been advanced in support of the view that depositions should not be taken by a jury in their retirement may well be invoked as reasons why this statement should not have been allowed to go into the jury room. * * * To deliver the written statement to the jury so they might have it constantly before them during their deliberations, to operate on their sympathies as well as their memory, tended to give a manifest advantage to the people over the plaintiff in error, whose proof was but oral. No reason is suggested, nor is any perceived, why the one party should thus have been given an advantage over the other." See, also, State v. Moody, 18 Wash. 165, 51 P. 356, 359; Territory of New Mexico v. Eagle, 15 N.M. 609, 110 P. 862, 30 L.R.A. (N.S.) 391, Ann.Cas. 19126, 81; Smith v. State, 142 Ala. 14, 39 So. 329, 334; In re Barney's Will, 71 Vt. 217, 44 A. 75.

In State v. Kimball, 50 Me. 409, 418, the trial court was upheld in refusing to allow the Revised Statutes to be taken into the jury room.

In Sawyer v. Garcelon, 63 Me. 25, 26, this court said:

"Furthermore, it is inevitably, to some extent, a question of discretion with the court, whether papers used at a trial, shall be taken to the jury room or not." Also see Rich v. Hayes, 97 Me. 293, 54 A. 724; McPhee v. Lawrence, 123 Me. 264, 122 A. 675.

So had the transcript been admitted, it was still within the discretion of the court to deny the use of it in the jury room,...