State v. Watson , 63 Me. 128 ( 1873 )

Dickerson, J.

This case is presented on exceptions to the order of the presiding justice overruling the motion in arrest of judgment, his exclusion and admission of testimony, his instructions to the jury, and refusal to give certain instructions requested by the defendant.

Several causes are assigned in the motion for arrest of judgment, but they may all be conveniently considered under two general heads.

I. It is alleged that no statute offence is set out in the second and third counts upon which the respondent was convicted. We do not think that this objection is well taken. The second count charges the setting fire to a barn with intent to burn a dwelling-house which was thereby burned. This is clearly an offence under the statute. So, also,' is the charge in the third count of setting fire to, and burning a dwelling-house, though no intent is alleged. In the one case there may have been an indention to burn the barn, and no intention to burn the dwelling-house. Hence the necessity of alleging an intention to burn the dwelling-house. In the other case the setting fire to the dwelhng-house and burning the same, necessarily imply an intention to burn it; hence there is no necessity for alleging this intention. R. S., c. 119, § 1; State v. Hill, 55 Maine, 368.

II. The motion in arrest of judgment further alleges that there is a repugnancy in the finding of the jury, since they convicted the accused upon the third count, and were silent upon the fifth, which is identical -with the third; their silence upon the fifth, as is argued, being, in legal effect, an acquittal of the accused upon that count. In other words, it is argued that the jury convicted and acquitted the accused upon the same substantive charge.

The authorities are not in harmony as to the legal effect of the silence of a jury in respect to one or more of the counts in an indictment when they return a verdict of guilty upon the other - counts. Some of them hold that such silence renders the verdict void; some, that it operates as an acquittal of the accused upon suchv count or counts; others that the court will disregard the counts upon which the jury are silent, and proceed to judgment upon those on which a verdict is returned ; others, still, that the verdict will be sustained, and the court will order a nol pros of the counts on which the jury omitted to return a verdict. The better opinion would seem -to be that, as the accused is entitled to a Verdict upon each 'and every substantive charge in the indictment, where the indictment contains several counts, each relating to the same transaction, and charging but one substantive offence, with different degrees of aggravation, the legal effect of a verdict of guilty upoh some of the counts, is an acquittal upon the other counts. This doctrine was held in State v. Phinney, 42 Maine, 384.

This principle applies to the first and fourth counts in the indictment but not to the fifth, as that is identical with the third upon which the verdict of guilty was rendered. The jury cannot be presumed to have, at one and the same time, convicted and acquitted the accused upon the same charge. The more reasonable view of the verdict in this respect is, that having found the accused guilty upon the third count, they did not deem it necessary to convict him again of the same charge set forth in another count of the indictment. The judgment and punishment under the verdict found being the same as it would have been if the jury had returned a verdict of guilty upon the fifth count also, the accused could not have been prejudiced by their omission to return a verdict upon that count. Besides, there can be no question but a judgment upon the existing verdict would be a bar to any indictment based upon the fifth count. Our conclusion is, that the ver diet is to be regarded as an acquittal of the respondent upon the first and fourth counts, and that the fifth count being the same as the third upon which he was convicted, should be disregarded, or that, at least, a nolpros shorfid be entered upon that count, and that the case should proceed to Judgment upon the second and third counts. State v. Phinney, ante; State v. Coleman, 3 Ala., 11; Sweeney v. State, G. & M., 576.

The’objection of the defendant that the record of his former conviction of a criminal offence was improperly admitted is obviated by R. S., c. 82, § 91. Under that statute the record of a previous conviction of a criminal offence is admissible to affect the credibility of the respondent in a criminal case, although the conviction may not have been for an infamous crime. That statute had its origin in the outgrowth of the modern idea that the sources of evidence ought to be enlarged. It would be contrary to the letter and spirit of this statute to restrict its application to records of conviction for infamous crimes as claimed by the counsel for the respondent.

Nor is the objection to the admission of parol evidence of the contents of the policy of insurance upon the buildings and personal property of the respondent destroyed by the fire, well taken. It was important for the State to show that the property was in sured in order to establish the respondent’s motive for setting the fire. The preliminary evidence introduced without objection, shew that the defendant held such a policy, and that he had surrendered it before the trial to the agent of the company who was out of the jurisdiction of the court. Under these circumstances we see no objection to the admission of parol evidence of the contents of the policy with respect to the buildings and other property of the respondent destroyed by the fire, as bearing upon the question of motive. 1 Greenl. on Ev., §558; Kidder v. Blaisdell, 45 Maine, 461.

It is further argued in defence that the presiding justice erred in excluding the writing of December 18, 1872, signed by the respondent, in which it is stated that the deed of the premises, Watson to Jordan, was to be deposited in the hands of S. C. Strout, Esq., for safe keeping for the grantor, till February 1, 1873, when it was to be delivered to the grantee. The government had introduced evidence tending to show that the deed was delivered previously to that time, when this wilting was offered.

The respondent was convicted upon the second and third counts in the indictment which charged him with burning the buildings of Jordan. Whether they were his property or not depended upon whether the deed from Watson to him had then been delivered. The writing offered is not an ex parte declaration of the grantor, but was made with the knowledge and consent of the grantee’s counsel, and for the very purpose of preserving the evidence of the agreement of the parties in respect to the time of the delivery of the deed; and yet by the exclusion of the writing, human memory was allowed to take its place. We do not think that the writing offered is inadmissible because of the failure of the evidence to show that it ever reached Mr. Strout, since that fact could not affect the intention of the parties in respect to the delivery of the deed. The materiality of this evidence becomes apparent when it is considered that the fire occurred before the time fixed in the wilting for the delivery of the deed. Upon this ground the exceptions must be sustained.

The other exceptions to the rulings of the presiding justice in excluding or admitting evidence do not appear to have been very 'much relied upon by the counsel, and cannot be sustained.

The objections to the charge of the presiding justice, for the most part, allege that it is metaphysical, argumentative, or unduly prejudicial to the respondent in its inferences, suggestions, illustrations, or assumptions. But we are satisfied that the exceptions upon this branch of the case cannot be sustained upon any of the grounds therein alleged. The justice undoubtedly, in a case of this importance, deemed it his duty to comment somewhat upon the evidence, that he might thereby afford the jury some guide toward the discovery of the truth. This is always a delicate, but in some cases, an indispensable duty of the court. The remark of the justice, so severely criticised by the counsel for the respondent, that considerations growing out of the enormity of the of-fence and the duty of protecting society, were pertinent to urge them to render a verdict according to their judgment, no matter what the penalty might be, if their minds should be inclined to the decision that the crime charged was proved beyond a reasonable, doubt, was simply an admonition -to the jury to do their duty fearlessly, and without undue sympathy for the prisoner — a caution by no means gratuitous, considering the skill, ability and learning of his counsel. There is no intimation that such “considerations” should supply the place of satisfactory proof of guilt, or that “inclination” of mind should be allowed to supersede conviction.

The authorities cited by the county attorney in his able and exhaustive argument, show that the exceptions cannot be maintained on account of the refusal of the presiding justice to give the requested instructions. If the county attorney in his argument to the jury transcended his legitimate province, the counsel for the respondent should have interposed their objection at the ^ime, that the court might have set the matter right before the jury. Not having done so, it is too late to raise that question. State v. McAllister, 24 Maine, 139; Commonwealth v. Cunningham, 104 Mass., 545.

The charge of the presiding justice shows that he substantially gave all the requisite instructions upon the other requests. Dunn v. Moody, 11 Maine, 239; People v. Lahman, 2 Barb., 219 ; Shorter v. The People, 2 N. Y., 192. Exceptions sustained.

Verdict set aside and a new trial granted.

Appleton, C. J., Walton and Daneorth, JJ\, concurred. Barrows and Virgin, JJ., concurred in the result.