State v. Trask

• Citation: 223 A.2d 823
• Parties: STATE v. Daniel A. TRASK.
• Decision Date: 10 November 1966
• Court: Supreme Judicial Court of Maine (US)

Page 823

223 A.2d 823

STATE v. Daniel A. TRASK.

Supreme Judicial Court of Maine.

Nov. 10, 1966.

Roger F. Blake, County Atty., Belfast, for plaintiff.

Francis C. Marsano, Belfast, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

DUFRESNE, Justice.

At the October Term, 1965, of the Superior Court for Waldo County the defendant, Daniel A. Trask, was tried for robbery and convicted. The indictment charged the crime of robbery in the usual manner, to wit, that on the thirtieth day of August, 1965, the defendant made an assault upon one Ormond E. Lawing and from the person of said Ormond E. Lawing, stole twenty- five dollars belonging to the said Ormond E. Lawing. His post verdict motion for new trial was denied by the presiding Justice and his appeal from that ruling is before the Law Court.

The single question raised before this Court upon appeal from the denial of a motion for a new trial is whether in view of all the testimony, the jury was warranted in believing beyond a reasonable doubt that the defendant was guilty as charged. State of Maine v. Viles, Sr. 161 Me. 28, 206 A.2d 539; State of Maine v. Ladd, 159 Me. 431, 432, 193 A.2d 914; State v. Croteau, 158 Me. 360, 361, 184 A.2d 683. And, in determining the sufficiency of the evidence to warrant belief beyond a reasonable doubt, the reviewing court on appeal from judgment of conviction must have in mind that it is for the jury to determine the credence to be given the witnesses and the weight of their testimony. State v. Brown, 142 Me. 106, 108, 48 A.2d 242, State v. Dodge, 124 Me. 243, 246, 127 A. 899, 901.

The record thus discloses that on August 30, 1965, one Ormond E. Lawing, a professional sailor with the United States Merchant Marine, had gotten off his ship in Searsport, journeyed by taxicab to Belfast, and met the defendant, whom he did not know previously, in a restaurant sometime after 5:30 p. m. In the cocktail lounge, Lawing and the defendant engaged in conversation which touched upon a variety of topics ranging from economics to bootleggers to girls. In the course of the evening, when the discussion concerned the economic opportunity of merchant seamen, Lawing jokingly asserted that he had $200 in his pocket, whereas in truth he had started out with only $40 which supposedly would determine the length of his leave. Two female patrons were more or less integrated into the party and benefited from Lawing's generosity when he bought drinks for the group. The defendant was drinking beer while Lawing was having 'screwdrivers.' Lawing's statement that he left the restaurant with the defendant between 10:00 and 10:30 p. m. is corroborated by the witnesses. His version of subsequent events reveals that, after having accepted defendant's invitation to visit female friends of his, Lawing proceeded to accompany him to an area, away from the Main Street, which lay beyond a rocky steep hill, 'just shooting the breeze about things' as they were walking along. As he neared the foot of the hill and looked around to see where defendant was, Lawing says that he was struck by the defendant on the back of the head, thinks that this blow was landed by his fist, and that, as he asked his assailant, 'what are you doing this for?', the statement that he heard was either 'you've got too much money' or 'I need some of your money.' After that, he was 'clobbered' into unconsciousness. He positively identifies the defendant as the man who struck that first blow, but remembers nothing from that moment when he became unconscious to sometime the next morning at about 8:00 a. m.

Lawing stated that in the area where he was assaulted, he did see a house, a car in the driveway, a pile of firewood nearby and was positive that he had about $25. left on his person at that time. His injuries to the head and body turned out to be very severe and inconsistent with a mere fist injury according to some of the medical testimony. A pool of blood near the automobile, plus bloody splashes upon certain areas of the car, positively corroborate Lawing's description of the theater of action. The stillness of the night engulfing Lawing's inert from following the assault continued on until about 1:00 a. m. Thereafter noises, moans or groans from the area were heard by a railroad attendant and the occupant of the house near the spot where Lawing was felled, but were discounted as the agitations of a drunken person. Dogs were also alerted about the same time to in disturbance. Another resident of the area was driven home by his brother-in-law and both noticed the single person around some tipped trash cans, but neither went close enough to the man to observe his injured condition. An initial police check of the area from the cruiser car revealed nothing. It is only at about 3:00 a. m. that a taxidriver accompanied by a police officer found Lawing and removed him from the area. Shortly thereafter, as testified to by the taxi-driver, it came to light that Lawing had no money on his person. His empty wallet was found later that morning of the thirty-first by the police in the immediate vicinity of the assault together with Lawing's social security and American Legion cards.

Defendant contends that the evidence was insufficient to prove guilt beyond a reasonable doubt on the following grounds. He first says that Lawing's identification of his assailant is incredible because of Lawing's intoxicated condition and of the obscurity surrounding the area where the attack took place. We disagree. Defendant had been with lawing for some 3 to 4 hours immediately prior to the eventual battery, was the only person with him in the area within a second of the first blow and was positively identified as his assailant. Witnesses confirmed that Lawing was feeling 'high' but was not intoxicated, and the evidence pictured the scene in semi-darkness and not in complete obscurity. Undoubtedly, defendant's goatee more than any other personal characteristic or other circumstance brought home to Lawing in accurate focus that his charging foe was none other than his accompanying friend. The jury had the right to believe Lawing's testimony which under no possible view can be characterized as impossible, incredible or otherwise insufficient.

Proof beyond a reasonable doubt may rest upon the testimony of a single witness. State of Maine v. Newcomb, 146 Me. 173, 78 A.2d 787. The testimony of a robbery victim, if it is positive and credible, when believed by the trier of facts, is sufficient of itself to warrant a conviction and no corroborative evidence is required. People v. Stewart, 62 Ill.App.2d 428, 211 N.E.2d 154 (1965).

From the evidence, the jury had a right to infer that Lawing was the only person in this out-of-the-way area from the time of the assault by the defendant at about 10:30 p. m. to the time he was noticed by the occupant of the nearby house, the railroad employee, the neighbor and his driver, and until he was removed from the area by the taxi-driver and the police around 3:00 a. m. It is true that one of these witnesses identified the person seen in the area as someone other than Lawing, but such testimony, which was positively contradicted by another witness, was evidence for the consideration of the jury, and under no circumstances was it binding upon them and they had the right to reject the same.

The defendant further advances that the State failed to prove beyond a reasonable doubt that the crime happened on the 30th day of August as charged in the indictment, and that if any...