*1 thе condition car before the acci- the essential elements of ipsa res loquitur The damages dent. proved. were not proven. was not
Appeal sustained. In all respects other I concur with this opinion. TAPLEY, (concurring). Justice WEBBER, J., joins. only the court evidence this case it, liability, below had before as to Defendant, Goodrich,
“That the Martha B. operator
was the of said motor vehicle highway
when it left the tele- and struck a
phone pole.” This statement was con- request
tained in a for admissions under request Rule M.R.C.P. This was not STATE of Maine answered, therefore the admission de- fendant operating the car became evi- Melvin F. WARNER. dence. Supreme Judicial Court of Maine. plain- parties, respective their Counsel for defendant, argued their briefs tiff and Dec. 1967. ipsa loquitur. res the doctrine of opinion states: this purposes of “Assuming, for the
case, holding, but without so departure the vehicle’s
fact alone of highway and collision with
utility pole the doctrine available makes is plaintiff, essential element lacking.”
still sup-
There case law in strong Maine
porting ipsa loquitur un- doctrine of res analogous
der circumstances to those ob-
taining the instant case. Chaisson
Williams, (automo- A. 154 stump);
bile left road and Shea struck a Hern,
et (car ais. v. 132 Me. A. 248
left striking pole); road and Corbett v.
Curtis, Me.,
suddenly
veered off a bridge brook). into a assume,
I see no occasion to but not
hold, that the doctrine is under available
the circumstances of this case. Had there affecting “management
been evidence doubt, have,
control” this Court would no
embraced applied the doctrine and
case. I assumption feel tends
to weaken ipsa the doctrine loquitur. of res my
In view the case fails because one of
153 *4 Saliem, Atty., Augusta, County
Foahd J. plaintiffs. Levine, Waterville, for defend- B. Julius ant. WILLIAMSON, J., and C.
Before *5 MARDEN, TAPLEY, DU- WEBBER, WEATHERBEE, and FRESNE JJ. WEATHERBEE, Justice. jury appeal from conviction
On
in vio-
homicide
upon
charge
reckless
a
of
perti-
1315.
lation of 29 M.R.S.A. §
follows:
part
section reads
nent
of this
with
a vehicle
opеrates
“Any person who
safety
oth-
of
disregard for the
reckless
of an-
the death
thereby causes
and
ers
of such
the death
person, when
other
year, shall
person results within one
homi-
reckless
of
of the offense
guilty
cide.”
January
morning of
early
In the
crossing
Charity, while
victim, Emma
two
with
College Avenue in Waterville
by an
killed
and
women, was struck
other
op-
alleges was
the state
automobile
by the defendant.
erated
Fair-
minutes later
few
was arrested a
charge of
County, on a
field, in Somerset
in-
influence of
operating while under
charge is still
liquor which
toxicating
him
against
pending. An indictment
seasonably
was
reckless homicide
charging
pertinent part
year. The
of
Jury
Kennebec
one
returned
the Grand
of
within
follows:
County
place
indictment reads as
and a
trial
took
on
25, 1966,
latter date
March
on which
:
CHARGES
“THE GRAND JURY
guilty.
the defendant was found
Albans
of St.
That Melvin F. Warner
of
and
County
Somerset
State
Pending trial
filed
the defendant
motions
A.
Maine,
day
January,
4, 1966;
the first
discovery
February
dated
a
on
County of
in the
property
D.1966,
and
at
motion for return of seized
Waterville
oper-
Maine, did
February
and
suppression
evidence dаted
Kennebec
reckless disre-
1966;
particulars
a motion for bill of
dat-
ate a motor vehicle
and did
February
1966;
safety
others
gard
ed
a motion to strike
for the
Emma
surplusage
thereby
the death of one
from the indictment and to en-
cause
Fairfield,
County of
prosecution
county
in said
join
Charity
another
dated
F.
he,
February 28,
Somerset,
the said Melvin
(the
under the
in that
;
day
January,
charge
County)
Warner, did,
a
first
influence
in Somerset
on the
vehicle, to
1966, operate
motion
a motor
to dismiss the indictment dated
D.A.
Avenue,
1966;
wit,
College
February
automobile,
a
on
motion for disclosure
County Kennebec
Jury
of matters before the
dated
in the
Grand
in Waterville
rate
22, 1966;
Maine,
March
excessive
and a motion
advance
at an
and State of
ruling
alleged
re-
speed
on
admissions
confessions
fashion with
or
in a reckless
existing,
dated March
1966.
then
gard
These motions
to the road conditions
seasonably considered,
were
wit,
and before sunrise
record was
after sunset
they
ap-
made
upon.
atmosphere,
were
An
then
fog
ruled
in the
did
peal
taken
proper
keep
defendant and twen-
lookоut
there fail to
points
ty-eight
appeal
on
then
fail to
reserved
and did
and there
see
Charity
the defendant.
person
Emma
who
of said
College
crossing
there
said
then and
a lawful
points
Avenue
said Waterville
appeal
Defendant's
on
will
he,
fashion,
Melvin
be stated and
said
F. War-
considered in
order. Several
ner,
there
the influ-
points
appeal
was then and
under
were not briefed
*6
intoxicating liquor,
a result
and will
ence
as
be
of
considered to have been
Charity
Emma
waived.
did
the said
thereof
strike
vehicle, in
the
motor
a violent
said
Point
1. “The
deny-
No.
court erred in
manner,
of
and
as
result
forceful
ing
defendant-appellant
motion of
dis-
the
death of
which accident caused the
miss the indictment.”
Charity.”
said Emma
February
1966,
28,
On
the defendant had
requires
Unquestionably the statute
moved to dismiss the
the
indictment and
prove, that
allege,
that the
as well as
State
presiding
after hearing denied his
year
the victim’s death resulted within one
At that time
motion.
the defendant urged
striking.
the
The defend
from the
of
date
grounds
six
for dismissal
the
of
indict-
statutory
charged
ant
with a
offense
ment,
appear
several which
of
been
have
7(c)
the Rules of Criminal
Rule
of
abandoned
3 al-
defendant. Ground
provides that:
Procedure
leged that
the indictment did not state
“
facts sufficient
an offense
constitute
*
* * *
*
* shall
indictment
against
Although
the State of Maine.
it
written
plain, concise and definite
be a
appear
does
argued by
to have been
the essential facts constitut-
statement of
below,
urges
he now
this Court
*”
* *
charged.
ing the offense
to hold that
fatally
the indictment was
de-
specific
simplify
fective because there was
designed
no
alle-
Rule
While this
“is
gation that the death of the
resulted
Maine
pleading”,
victim
criminal
Section 7.3
Practice, Glassman,
indictment,
alleging that the defend-
it
not alleviate re-
after
does
sponsibility
charging every
ant
victim with
automobile
element of
struck the
1,
offense,
1966,
only “as a result
requirement
long
January
on
adds
of
stand-
the death of the
ing.
accident caused
of which
Charity.” The date of Emma
said Emma
“When the
both
statute
creates and de
spe-
it
Charity’s
alleged
is not
nor is
death
fines an offense not known to the com
cifically alleged that her death occurred
* * *
law,
must,
mon
indictment
1,
January
Hоw-
year
within
of
1966.
one
**
course,
follow
statute
Feb-
ever,
returned on
the indictment was
Section
Directions and Forms for
its
that date and
ruary
bears
Procedure,
Criminal
Whitehouse
defend-
unmistakably
language
informs
Hill;
Munsey,
408, 410,
114 Me.
State
February
that on
charges
ant that the state
Smith,
729A.
Petitioner v.
dead,
2, 1966,
Charity
Emma
Maine,
A.
time between
time
she died at some
2d
returning
accident and the time
less
indictment,
obviously
is
which
of the
pleading
re
Careful
would
criminal
year.
than one
precise allegation of
sult in the use of a
equivalent
an inartistic
language is
This
alleged
this element
crime such as
of the
death resulted
that her
of the words “and
thereby
words “and
caused the death
year.”
within one
sug
year” as is
of Richard Roe within one
5, language
gested in
Form
M.R.Crim.P.
presented
been
question had
expressly
by Rule
declared to be sufficient
jurisdictions
other
courts of several
58.
alleges
indictment
when an
have held that
returned
and is
caused death
an act which
defendant,
guar-
It is the
right
statute, it
by the
limited
period
within the
Maine,
Art.
anteed
the Constitution of
death occurred
necessarily
follows
demand
nature and cause
Sec.
“to
adequately in-
period,
within the
have defined
accusation.” We
ele-
essential
as to
forms a defendant
sufficiency
explanation
standard
ment
the crime.
this manner:
event,
criti-
phraseology
“But,
applied
re-
test to be
is whether a
“The
material,
the information
is not
cised
spondent
and normal intel-
of reasonable
mortal
informs the accused
would,
ligence,
language of
Brace died
which Lottie
wounds from
indictment,
adequately
be
informed of
day of Novem-
5th
inflicted on
charged
and the nature thereof
crime
dated
ber,
information
and the
and,
if con-
order
to defend
able
November, 1902,three
day
the 8th
*7
victed,
as a
use of the conviction
make
necessarily
that it must
days after. So
plea
jeopardy,
basis
a
former
within
occurred
the death
that
follow
v.
should
occasion arise.”
State
infliction
days from the
three
898,
Charette,
124, 127,
159
188A.2d
Me.
re-
information,
in all
wounds.
(1963).
900
to sustain
sufficient
spects, seems to be
Champoux, 33
v.
judgment.” State
case,
Applying the standard to this
557,
339,
(1903).
559
74 P.
Wash.
adequately
in
would
defendant here be
appears from
it
instant case
charging that
“In the
formed that
State
was
returned
was
indiсtment
operation
record that the
of his vehicle
reckless
with
day
the commis
and a
only
year
a
safety
within
disregard for
of others
deceased,
upon the
assault
Charity but also
sion of the
caused the death of Emma
indict
appears
it
from
course
year?
and of
that her death occurred within one
he
its return
time of
crime,
that at the
As
ment
to this
element of the
latter
157
locality
is
dead;
appears
criminal act
of the
was then
therefore
per
part
29 M.
that the
not a
offense created
from
record
assault
day
allegation
1315
petrated
year
than
be R.S.A.
and is an essential
less
a
and a
§
only
Alder
show
M.R.Crim.P.
fore the
of the
venue. See
death
deceased.”
572,
State,
that
of
22,
Allegation
proof
Form 5.
son
196
145 N.E.
v.
Ind.
Waterville, in Kennebec
574
fense occurred in
(1924).
County,
requirements
satisfied the
of ven
For
reaching
cases
the same
see
result
M.R.Crim.P.,
ue.
Rule 18.
Commonwealth,
Ky. 188,
Milburn v.
223
Point No.
5
1—Ground
204,
3
(1928);
S.W.2d
205
State v. Cav
iness,
500,
40
890,
Idaho
235 P.
Defendant
included
also
as
a
(1925);
State,
Brassfield v.
Ark.
Ground for dismissal
indictment
of the
an
People
S.W.
1041 v.
vagueness
alleged
as to the “manner and
Corder,
306 Ill.
N.E.
operation
circumstances of
of the automo
bile”
charges
the state
which
constituted
No other
driving
disregard
conclusion
with a reckless
for the
could
result
the reading of the
safety
reference
of others.
indictment
a defendant of reasonable and
in-
normal
Houde,
In
v.
State
150Me.
A.2d
telligence than that the
charging
State was
complaint
366 (1955) we held that a
which
Charity’s
Emma
death had resulted at
only
charged
that the defendant drove his
point
some
between the date when the state
“in a
automobile
reckless manner” did not
charged he struck her and the date the in-
give
adequate
defendant
notice
of the
dictment
returned,
only
little
a
more
he is called
charge
nature of
than a month later.
If
the defendant
a
pointed out that
upon
There we
to meet.
wished
precise
to know the
date the State
might be
particular
operation
manner
died,
claimed she
he could have included a
at
reckless
daylight and
in the
lawful
request for this information in the bill of
State,
example.
In
night,
Carlson
particulars which he
Furthermore,
filed.
we found
(1962)
Point
Streets,
No.
Main and
1—Ground
No.
5.
Birch
also
Main and
informed the
adequately
Streets”
Maverick
This
urges
Ground
that the indictment is
nature of
defendant of the factual
fatally defective
vagueness
because of
protect
gave
detail
charge and
sufficient
that it describes
place
alleged
jeopardy.
double
against
him
only
offense
as “on College Avenue in
adequ
case
in the instant
indictment
Waterville,
County
in the
of Kennebec and
as to the fac
ately
the defendant
State
informs
of Maine.”
recites,
It
charge.
of this
tual nature
upon
charge
relies
explanation
Pe-
of its
terson,
safety
of others
disregard
justice refused give. The following re- quested may “You find argued guilty instructions were not defendant and the others merely you may are considered waived. because find that he at the place alleged
drove time and with Requested disregard safety reckless for the of oth- instruction No. 10: find, If you ers. so guilty he is not un- “10. The State has prov- the burden of you less find that conduct such on his beyond ing a reasonable doubt that the part the proximate was cause of death of Charity Emma was not acciden- Charity. death of Emma Proximate tal, that it was not causes, due to natural cause means and that it was due to the act “A. deceased That herself. defendant’s conduct may You reckless not find the was defendant the sole cause of the death Emma criminally responsible for the you Charity; is, any death if have if other cause such a reasonable doubt as Charity’s whether as Emma negligence own at accidental, death all due death, causes, to natural contributed to her bringing or due about to the act of the deceased then the herself.” defendant must be found not guilty; denied, request or if A this The presiding justice give did not the re- requests defendant following in its quested fully instruction. He correctly place: instructed the jury on the burden state’s “B. That defendant’s reckless conduct proof “every necessary element” of the causing contributed Emma more to charge against the defendant beyond a rea- Charity’s death than other cause sonable doubt. He cautioned them that carelessness; such as or her own if they could not “speculate or surmise or request denied, requests B is guess”. He read to the statutory following place: its definition of the crime of homi- reckless cide with its clear language thereby “and “C. That reckless conduct causes the death of prefaced another”. He substantially contributed Emma so explanation his charged the offense Charity’s death that he should be held simple, brief and explana- clear * * *” it; responsible criminally tion: presiding not in error in “You must determine that this defendant refusing requested It is instructions. death,
caused that you otherwise would true acts inasmuch as the unlawful your end deliberations there.” charges which State constitute n withreckless In addition he referred disregard to the element acts “causing the prohibitum, death of another” on are malum therefore the acts twelvе later instances in charge. proved presid- charged must be to have been ing justice repeat, proximate is not bound to at re- cause death.
160 if into evidence. But 223, 244, tion of admission Budge, Me. 53 A.L.R. 126 137 A. it was intoxicat Hamilton, Me. is shown the accused (1927); 241 v. 149 State mania, being or of un 218, degree ed to the of 239, (1953). 234 The reck- 100 A.2d meaning to of his have the sole able understand less need been conduct statement, is inadmissi it then the statement cause death nor must of victim’s upon The alcohol the ac cause. ble. effect of contribute more than other credibility to goes weight cused and by presiding justice The language used jury. in be the admission instructing jury on causation was a accorded 100, Cal.App.2d People MacCagnan, 129 adequate explanation. clear v. and While “proximate (1954); 276 P.2d Commonwealth did not use term 679 ; Howe, Roper cause”, (1857) 75 110 Peo scrupulously Mass. defined the State’s ple, P.2d 232 correctly 493, (1947); 116 179 proof burden causation Colo. of as to 57, State, 750 in Eiffe v. 226 77 N.E.2d long and have been consid- Ind. words which (Mo.) 350 (1948); v. Thresher S.W. acceptable proximate ered definition (1961); (Mo.) 1 342 S. 2d State v. Smith Laundry Co., cause. 132 Hаtch v. Globe State, Lindsey v. 66 (1961); W.2d Thompson v. 941 A. 171 387 L.R.A.,N.S., 1077 54, 59, Fla. Frankus, A.2d 718 63 So. 151 Me. States, App.D.C. (1914); Bell v. United (1955). (1931) A.L.R. 1098 F.2d Requested Instruction No. 577; 23 Evidence Sec. C.J.S. Am.Jur.2d C. 3: 828; Anno. 69 A.L.R.2d Criminal Law § 358, 362. Warner) “If you (Melvin find that he was intoxicated at the time these al- majority appears The rule us in to be you leged statements, must them in- find accord with our own standards volun- voluntary you must not consider tariness of admissions. against you them at all Mr. If Warner. the alleged find that at the time state- deny- Point court erred in “The No. 7. the influ- ments Mr. Warner under sup- defendant-appellant’s motion ing liquor, you ence intoxicating also press fruits thereof evidence and the suf- must them not at disregard all con- and illegal fered an unconstitutional against sider them him.” admitting such search and seizure evidence and into evidence at fruits correctly request. refused court trial.” preliminary determination of an intel- ligent right and to waiver to counsel complained of under this The evidence silence rule, the Escobedo then con- may groups, (1) two Point divided into be required trolling, the court to neces- make dents, markings foreign evidence toas sarily de- included consideration of the the state examina- gained substances fendant’s condition as to the al- effects of dooryard Fair- tion of the car cohol. ques- When the court submitted the field, gained from exami- and (2) evidence tion of the admissions to be- garage at Arbo’s nation of the car body’s came duty to determine wheth- Waterville. made, er the alleged admissions were they voluntarily whether were made contends now The defendant
the weight
given
them.
car in the
observation
an un
two officers was
driveway by these
majority
great
ju
acts
and seizure.
constitutional search
which have considered this issue
risdictions
examining the outside
of the officers
proof
have held that
that the accused was
Fairfield drive
in the
car
the defendant’s
intoxicated at the time he made the admis
and violated
unobjectionable
way
sion
not,
more,
recep
will
without
bar the
Al-
rights.
trial. concerns other instance Officer The defendant contends that refer- two testimony mir- regarding MacArthur’s during ences knowledge gained the trial to in the near ror which he had found street police during that examination of Charity’s body. Mrs. The officer testified: car Arbo’s garage prejudicial were to him under poisoned the “fruit from the I later kept “I it evidence and for doctrine, tree” arguing that the car was up point he was matched it with —” At this cross-examination, Later, illegally interrupted. on and that held results of attacking the offi- counsel examination of it there would be tainted. testimony concerning the manner cer’s Silverthorne Company Lumber United exhibit preservation the officer’s States, States, supra; v. United Nardone question and the record shows 308 60 84 307 U.S. L.Ed. S.Ct. answer: (1939); States, Wong United Sun v. 371 U.S. 83 441 S.Ct. 9 L.Ed.2d your this mirror in “Q. You didn’t have you went locker at all times since (1962). position the scene the accident until to the State’s must hаve been in- terpreted by them you? indicating now did the results position. favorable to State’s brought A. I it down and I took here We find no abuse of his discretion. Garage. over to Arbo’s This mirror my possession.” left never This situation contained an additional worthy element which is comment. a The defendant moved apparently avoiding State was reference upon mistrial based Officer MacArthur’s trip the officer’s garage. to Arbo’s up mir concerning matching himself, attempt defendant’s counsel in an garage. ror and reference to Arbo’s upon to cast doubt the manner in which a the sound Such motion addressed to preserved, brought exhibit had been out discretion whose presiding' that the officer had taken the exhibit rights responsibility it is to safeguard garage. ques- undertook to He ask both It is the defendant State. quoted although tion he knew above ability generally jury’s that if said compari- mirror had taken out been impartial may render an have been verdict defendant’s car son with mirror on affected, judge’s duty grant it is the argued held illegally which defendant Slorah, motion for a mistrial. at the tran- garage, Arbo’s as is shown Me. 106 A. A.L.R. suppress. script Under hearing Sanborn, A.2d State v. may presiding justice such conditions the Hamilton, supra.; 854 (1961); State v. asking of properly find that sometimes Perez, 579, L. United 9 Wheat. States v. risk question is a calculated such justice’s will Ed. 165 decision successfully questioner cannot wrong not be or overruled unless manifest complain hurt the answer being Cox, supra. injury has resulted. State v. receives. *14 any event, find we do not In contemplates rule that there The constitutional of defendant’s violation must be than danger more a theoretical of and examination of however, rights the officer’s prejudice, and the examination defendant’s outside photographing the expected a witness proceed cannot be to officers, Police garage. car at Arbo’s completely the antiseptic under conditions investi responsibility of charged the hospital of a with operating find no room. We Charity, Mrs. death of the felonious gating danger real prejudice. officer’s an automobile scene finding near the statement he up”, that it inter “matched believe cause to they had reasonable rupted which as it at that harm point, was was the instrumentality of the to have been less. The jury had not been told with the authority but crime, only not had what it—perhaps he had matched exami reasonable hold the car for duty to gasket which he had also found—or wheth evil privacy—the nation. No invasion er the posi results of were matching against prohibition the constitutional prejudice tive or to negative. We see no oppos searches seizures unreasonable from defendant the reference to Arbo’s exte inspection its in es—was involved garage. intelli reasoning Doubtless ex search—only the There no rior. was gent men jury women would open and visible. amination what expect police attempt com officers States, (9th 371 F.2d v. United Cotton pare in mirror found the street with 1967). Cir. remaining the one car or with the marks on side where one that the they
had been. The
that
fact
fact
who
officer
arrest
a Fairfield
told
the State’s witnesses that such
under
responsibility
safeguarding
test had been made with
favorable
had a
results
Fourteenth Amendments
prohibited
neighboring
Sixth
way
car
nc
and to
Constitution
States
the car United
taking
Waterville officers
Constitution.”
county
lawful Maine
across
line
their own
public
right to
examination. The
has the
requirement
been no
There has
expect
cooperation among
such
its law en-
State,
by judicial
either
statute or
forcement officers.
decision,
receive
the accused must
Point
8. “The court
deny-
No.
erred in
may be
warning that his
used
admission
ing defendant-appellant’s motion for a mis-
may
informed he
against him or that
be
trial and renewed motion therefor on the
remain silent and consult with counsel.
ground
the State informed the
many
held that
Our court has
times
that defendant-appellant had
arrested
been
testi
applied
test to
admission of
for a crime for which he had not been mony covering
ad
alleged confessions or
convicted.”
missions is
determination of whether
voluntarily.
given
was or was not
State
The defendant
knowledge
here
refers
Grover,
96 Me.
asked me if I wanted a blood test or a
general
that the
rule of evidence is
lawyer I took it to be for this woman
habits,
prior
reputation
acts or
for care of
hit,
got
woman,
who
but I didn’t hit no
pur
a defendant are
for the
not admissible
I
figure
so didn’t
I
lawyer.”
needed a
рose
prove
attempting to
what
con
Defendant
county
attorney
said
might
also
specific
duct
have been on a
occa
*16
told
right
Co.,
him' of his
lawyer.
to have a
Evergreen
sion. Poole v.
Livestock
The defendant
131,
said he
“feeling
was
all
v.
(1955);
262 Ala.
167 question a however, in answer to agreed, determining his manner ployment in had never 2 that he defendant’s counsel specific later than from a occasion driving on im- during in “about what forces party testified court a New Year’s after A.M. auto- on a certain pact intoxi- have results had consumed what the defendant which liquor. mobile.” cating in re- court erred No. “The Point 12. expert а called an witness as “Whether
fusing
admit into evidence
qualifications
possesses
requisite
Nason.”
of Chester
testify,
preliminary
him
is a
enable
court.
question to
decided
a
Nason
offered Mr.
be final
conclu-
That decision must
stated
expert
witness and Mr. Nason
appear
sive,
clearly
unless it made
opinion
that
had an
as to whether
justi-
it
that was not
evidence
mirror,
been
State’s Exhibit
could have
fied,
upon some er-
or that it
based
was
force,
in-
application of sudden
removed
Me.
Dingley,
in
v.
88
ror
law.” Marston
body
heavy wom-
cluding striking the
of a
Libby,
546, 34
v.
(1896);
A. 414
State
an,
specific
whether
dents
certain
8,1,
(1957);
Me.
was or
not
13. “The
No.
court erred
Point
justice
and we
substitute con
cannot
refusing
parts
to admit into
evidence
jecture.
Rist,
State v.
130 Me.
deposition of
Kanaris.”
Sadie
(1931);
154
178
Me.
Dow,
A.
State v.
122
Wombolt,
A.
120
427
(1923);
Charity’s death a
Some time after Mrs.
Glassman,
126
(1927);
that court ordered Kanaris’ County taken that Somerset case. In any we event find no error on the part presiding justice ruling re- There was no error qualifications the witness’ answer fusing to admit reckless into evidence in a proved. questions these had been parts of County homicide trial in Kennebec body shop deposition taken in a witness was a foreman Mrs. Kanaris’ *17 times the Somerset who had testified in court under influence trial in numerous expert repairs County. mo- as an cost of to M.R.Crim.P. 15 authorizes the Rule damaged deposition in He tor vehicles accidents. the use of a in substitution personal only appearance the witness “The court of a Point No. 22. in a trial the it admitting action relative to which erred in into evidence State’s was ordered taken. Exhibit #8.” that Defendant had contended certain Point No. 19. “The court erred his car his car dents on were caused failing to jury order or lis the not read to high previously hitting 32 inch a curb ten to accounts of the trial in media.” news In re guy metal wire shield in Hartland. At day testimony the close of the third of the trial buttal introduced the State the defendant’s dispute height counsel addressed curb and of this State’s court: Exhibit was admitted over #8 close-up objections. a purports It to be Honor,
“MR. Your it LEVINE: would shield and view of thе curb and wire appropriate be he asked jury yardstick being appears be a shows what any any read stories or listen to person held beside shield. reports of this trial?” State should defendant that the contends proof required present have been justice responded in this manner: accuracy shown on the measurement “THE I have cautioned them COURT: yardstick. presiding Here the vein, in that under- Mr. Levine. You as picture described article in heard the may reports stand there be I news who yardstick” by the witness “a 36 inch again only you suggest and direct not to practice rule of photograph. took the may excerpts read just it. There be firmly elsewhere established here as testimony you from the to cause to think photographs exclusion of admission or way one concerning or another that tes- court, not to is within discretion of timony, keep yourselves so free exceptions abused. unless disturbed on reading itof as well as anything else. 242, A.2d 229 Bobb, 138 Me. adjourn morning We will until tomorrow 61, 178 (1942); Duguay, Me. State v. at 9:30.” Public Utilities Commis A.2d 129 487, 493, Express, 153 Me. sion v. Cole’s language We above are satisfied 466, 469(1958). 138A.2d quoted understood аs instruction exposing to refrain from them- in ad- There was no abuse of discretion possible selves re- influence of news photograph. mitting the ports. find no
We error. erred “The court Point No. 23. hearsay prior
admitting evidence into Point No. 20. “The court erred asking without first inconsistent statements admitting into irrelevant matters evidence previously witness witness whether the prejudice defendant-appellant.” made such statement.” An examination record discloses complains In his brief the testimony of the defendant and his testi- subjects as to which witness questions witnesses had made the com- and cross-examination fied direct plained substantially relevant to the is- her sought to to which the state contradict sue. Their as to the innocuous Capt. Dro'st. through testimony of rebuttal during nature of defendant’s activities transcript con- trial day Examination of the question evening entitled the attorney in fact county us that the explore vinces State to within reasonable limits de- procedure which the exact followed the circumstances surrounding each of suggests Appeal Point on fendant’s visits defendant had made. find no We followed, there was and that have should error.
169
States,
presiding
nicians,
Brinegar
part
here
act.”
v. United
no error
on
1302, 1310,
93
justice.
338 U.S.
69 S.Ct.
(1949).
L.Ed. 1879
exception
recognized
It
is a well
testimony
summarized
Review of
testi
a
has
hearsay rule that when witness
ample
earlier
that
there
evi-
reveals
facts,
or
fied
declara
to material
acts
probable
dence to constitute
cause for Of-
his,
inconsistent, are
appearing
tions of
ficer
arrest of the defendant.
Mi
Nelson’s
competent impeachment. Audibert v.
305 (1920);
119 Me.
111 A.
chaud,
28. “The
in ad-
Point
court erred
No.
406, A.2d
Mitchell, 136
11
Me.
Mitchell v.
hearsay statements
mitting into evidence
Mosley, 133
898
State v.
Me.
(1940);
presence
made in the
of defendant
viola-
Hume, 146
(1934);
175
307
State v.
A.
rights
tion of
constitutional
the defendant’s
129, 142,
(1951).
Me.
head MARDEN, (dissenting). Justice disagree Respectfully I must point, At this defendant’s counsel ap- majority opinion point first on the said: peal. 7(c) that Rule Maine Granting ‘“I hearsay move strike both the what simpli- designed Rules “is of Crim.Proc. officer eаrlier said and the defend- ** course, fy pleading criminal *. Of your ant’s reaction Honor on the every must be element of offense grounds of admission defendant stat- charged in the indictment.” Section 7.3 ed before.” Practice, Maine Glassman. language highly used counsel was and “When the statute both creates de- ambiguous. Did counsel refer to the com- offi- fines an offense not known to the * * * quoted must, cer’s statement law, last above mon indictment ** shaking course, defendant’s reaction of his head follow statute prescribes such must son death Directions Forms
Section Procedure, If the victim of the acci- year. within one Criminal Whitehouse by a experience Me. dent survive Hill; Munsey, 114 should State v. ap- day, year statute would Smith, 729; Petitioner A. allegation death ply. 313, 318, A. Maine, 145 State of year one from the date victim within *20 2d 538. an essential fact constitut- collision is caused The offense of reckless homicide charge ing offense. The omission operation reckless of vehicle with the indictment this fact is fatal defect safety disregard of others I conviction should be reversed. points thereby per- appeal. causing the death of another would not reach the other