State v. Sanborn , 157 Me. 424 ( 1961 )

Sullivan, J.

John B. Sanborn was by indictment accused of the offense of having on May 20, A. D. 1956 feloniously bought, received and aided in concealing 27 listed articles of furniture which had been previously stolen by George Webber from Reynolds Brothers, Inc., R. S., c. 132, sec. 11. Upon his arraignment Sanborn pleaded not guilty. A jury was empaneled and a trial was had to the extent of the presentation of the State’s case and partial examination of the first defense witness when the presiding Justice spontaneously declared a mistrial. Respondent immediately objected to such direction by the Justice. Respondent was thereafter subjected to a second trial and punctually interposed a plea of double or former jeopardy. His plea was denied and he now prosecutes his timely exception to that unfavorable ruling.

There follows an abridgement of the significant evidence presented at the first trial.

In the spring of 1956 George Webber a next door neighbor of the Respondent and an acquaintance through 14 years was working as a night employee at the furniture mill of Reynolds Brothers, Inc. Sanborn had visited Webber at night at the mill 3 or 4 times and had talked with the latter of stealing furniture from Webber’s employer. About March, 1956 on a street the Respondent solicited Webber to obtain for the former some furniture or parts from the mill. Webber protested: “No, I will probably get caught.” Sanborn countered with the admonition: “You be careful you don’t get caught.” Webber was to be paid by Sanborn $3 or $4 for each article taken. During an estimated period of 2 months Webber had stolen several pieces of furniture from his employer, had taken them to his home and had sold all of them to Sanborn. Webber identified 3 checks acquired by him from the Respondent in payment for certain of the purloined chattels. The checks were received in evidence. All items stolen had been integral. Two were unfinished. 26 pieces of furniture were collocated in the courtroom at the trial and were marked seriatim State’s Exhibits 1 through 26.

Webber identified Ex. 1 as a telephone bench manufactured by Reynolds Brothers, Inc. at its mill and stated that he had stolen some 3 or 4 telephone benches such as Ex. 1 and had sold them to Sanborn for $3 apiece.

Webber described Ex. 2, 3 and 4 as telephone benches made by the mill, testified he had stolen 4, 5 or 6 and sold them to Sanborn.

He identified Ex. 5 as a small table produced by the mill, said that he had stolen as many as 6 of such in March or April or May, 1956 and had sold them to Sanborn.

Webber recognized Ex. 6 through 17 as tables manufactured by the Reynolds mill.

Ex. 6 he termed a clover leaf table. He said that he had stolen several like objects from the mill and had sold them to Sanborn in March, April or May for $2.50 each.

Webber designated Ex. 7 as a clover leaf table and a product of the mill. He asserted that he had purloined several such and had sold them to Sanborn in March, April or May for $2.50 apiece.

State’s Ex. 8 the witness called a clover leaf step end made by the mill. He related that he had abstracted several of the kind and had sold them to Sanborn for $2.50 each.

State’s Ex. 9 the witness denominated a clover leaf step end and a product of the mill. He told that he had filched several like the exhibit and had sold them in March, April or May, 1956 to Sanborn for $2.50 apiece.

Webber labelled State’s Ex. 10, 13 and 16 lamp, magazine or coffee tables produced by the mill. He had stolen several of such items and had sold them to the Respondent for some $2 each.

Ex. 12, 14 and 17 the witness termed clover leaf step ends from the mill. He had pilfered several of their kind and had sold them in March, April or May, 1956 to Sanborn for $2.50 apiece.

Ex. 18, 19, 20 and 21 Webber classified as magazine racks with 2 steps and as products of the mill. He stated that he had stolen several such and had sold them to the Respondent in March, April or May, 1956 for $3 each.

Ex. 22 the witness called a square table, 15 inches high and manufactured at the mill. In March, April or May he had purloined 2, 3 or 4 and had sold them to Sanborn for $2.50 apiece.

Ex. 23 the witness styled a corner table made at the mill. He admitted having abstracted 2 or 3 like articles and having sold them to Respondent for $2.50 each.

Webber testified that Ex. 24 was probably a lamp table and magazine rack produced in the mill. He confessed that he had stolen several items of the kind and had sold them to Sanborn in March, April or May, 1956 for $2.50 each.

The witness swore that Ex. 25 was a desk or table made by the mill, that he had pilfered several of them and had sold them to Sanborn for $2.50 apiece.

Ex. 26 the witness named a table or school desk. He told of having filched several of such item in March, April or May, 1956 and of having sold them to Sanborn for $2.50 each.

The witness divulged that Sanborn was aware of Webber’s thievery while the Respondent was purchasing the furniture appropriated.

Webber in none of his testimony pronounced that Ex. 1 through 26 were the objects stolen and sold. He described the exhibits as facsimiles of the looted goods.

Sanborn by avocation was a furniture dealer. On May 20, A. D. 1956 Pitt J. Smith who was. likewise by subordinate occupation a furniture tradesman bought from the Respondent Ex. 1 through 26 in the normal course of trade. Smith supplied to the court Sanborn’s receipt for the purchase price paid by Smith for the articles. During the investigation of Webber’s abstractions Ex. 1 through 26 had been traced by the sheriff’s department to the possession of Smith who readily relinquished those articles to the authorities. Smith identified Ex. 1 through 26 in court and at the same time affirmed that the exhibits were in the same condition as when acquired by Smith from San-born.

Ronello Reynolds, director, president and treasurer of Reynolds Brothers, Inc., owner of the mill, related that the mill had missed articles from its inventories, once a week. The lost items had been present in the mill at night and gone on the following morning. This witness recognized Ex. 1 through 26 as first grade current products of the mill and not as samples. Samples, he explained, were made by hand rather than by machine. He averred that only he and his brother, Edward, had had the right to sell furniture from the mill. The witness had never sold any articles similar to Ex. 1 through 26 to either George Webber or Sanborn. The mill had sold only at wholesale and not at retail. Ex. 1 through 26 had all been manufactured since April 25, 1955 following a fire which had consumed a former mill on September 17, 1954. The witness explained that Ex. 1, 2, 3, 4, 22 and 24 had been finished at the mill but that Ex. 5, 6,7, 10, 11, 14, 15, 16, 18, 19, 20, and 21 had been completed but not finished. He declared that he had never sold, given away or disposed of any class A-l manufactured furniture which had not been completed with finish. Sanborn had sought several times without success to buy pieces of furniture from the mill. The witness placed a value upon each of Ex. 1 through 26 and described such articles as we shall note later in this opinion.

Edward Reynolds, production manager of the mill, corroborated the fact that Ex. 1 through 26 were the manufacture of Reynolds Brothers, Inc. and that he and his brother, Ronello, shared exclusively the authority to sell the mill products. The witness had never sold any complete articles to Sanborn with one negligible exception. The witness had not sold any complete items to George Webber or to anybody except to wholesale dealers.

Ex. 1 through 26, with the exception of Ex. 11, were offered by the prosecution without comment and were admitted in evidence by the Court over the objection of Respondent’s counsel who opposed because the items were not and had not been demonstrated to be the personal property described in the indictment.

Ex. 1 through 26 had been utilized by the State throughout the trial as models, replicas or standards and as typical products in their respective kinds from the mill. Wigmore on Evidence, 3rd. Ed., secs. 439, 791, 793.

“Rule 105. Control of Judge Over Presentation of Evidence.

The judge controls the conduct of the trial to the end that the evidence shall be presented honestly, expeditiously and in such form as to be readily understood, and in his discretion determines, among other things,

(j) whether a witness in communicating admissible evidence may use as a substitute for oral testimony or in addition to it a writing, model, device or any other understandable means of communication, and whether a means so used may be admitted in evidence;”

American Law Institute: Model Code of Evidence.

There had been no stated profession that Ex. 1 through 26 were some of the self-same chattels which Georg'e Webber had stolen from the mill and had sold to Sanborn. The Reynolds did not assert that they recognized Ex. 1 through 26 as articles stolen by Webber or purchased by Sanborn although the brothers had declared that they had sold no such products to any persons other than dealers and had not sold such products in an unfinished state even to dealers. The Court voiced or assigned no determinant for his acceptance in evidence of Ex. 1 through 26 at the time of their admission. In the record we find no comment upon the fact that some of Ex. 1 through 26 had not been described in testimony to conform with any items of furniture designated in the indictment.

“In the case before us, the subject matter is a pine log, marked in a particular manner described. The marks determine the identity; and are therefore matter purely of description. It would not be easy to adduce a stronger case of this character. It might have been sufficient to have stated, that the defendant took a log merely, in the words of the statute. But under the charge of taking a pine log, we are quite clear, that the defendant could not be convicted of taking an oak or a birch log. The offence would be the same; but the charge, to which the party was called to answer, and which it was incumbent on him to meet, is for taking a log of an entirely different description. The kind of timber, and the artificial marks by which it was distinguished, are descriptive parts of the subject matter of the charge, which cannot be disregarded, although they may have been unnecessarily introduced. The log proved to have been taken, was a different one from that charged in the indictment; and the defendant could be legally called upon to answer only for taking the log there described---”

State v. Noble, 15 Me. 476.

“When a material allegation is made unnecessarily precise by a two particular description, the descriptive averment cannot be separated and rejected but must be proved as laid. Thus where a sheet was described as a woollen sheet, though the statement of material was unnecessary, the epithet must be proved to procure a conviction; so where a horse was needlessly described as a white horse; logs as marked with a certain brand;----So if money is needlessly described the proof must correspond to the description.”

Criminal Pleading and Practice: Beale, sec. 112, P. 114.

The following tables will exemplify and clarify several coincidences between the chattels arrayed in the indictment and the denomination by witnesses of Ex. 1 through 26.

Indictment

Item 1. 1 large step-end table

2. 4 telephone benches

1 lamp table

11 step-end tables

5. 1 end table model No. 1251 N.

6. 4 three step tables

7. 1 square table

8. 1 corner table

9. 1 magazine rack

10. 1 large cocktail table

11. 1 small cocktail table

Total 27

Testimony of George Webber

Ex. 1 telephone bench 2nd item, indictment

Ex. 2 telephone bench 2nd item, indictment

Ex. 3 telephone bench 2nd item, indictment

Ex. 4 telephone bench 2nd item, indictment

Ex. 5 small table

Ex. 6 clover leaf table

Ex. 7 clover leaf table

Ex. 8 clover leaf step end

Ex. 9 clover leaf step end

Ex. 10, 11, 13, 16 lamp, magazine or coffee tables 3rd item, indictment

Ex. 12, 14, 17 clover leaf step ends

Ex. 18, 19, 20, 21 magazine racks 9th item, indictment

Ex. 22 square table, 15 inches tall 7th item, indictment

Ex. 23 corner table 8th item, indictment

Ex. 24 probably lamp table or magazine rack 3rd, 9th items, indictment

Ex. 25 desk or table

Ex. 26 table or school desk, etc.

Testimony of Ronello Reynolds

Ex. 1 to 4 No. 2550 gossip bench or telephone stand 2nd item, indictment

Ex. 5 No. 2510 or 2511 end table

Ex. 6 No. 2577 step end table ith item, indictment

Ex. 16 No. 2585 step end Uth item, indictment

Ex. 15 No. 2589 step end table Uth item, indictment

Ex. 18 No. 2547 step end

table Uth item, indictment

Ex. 24 magazine rack 9th item, indictment

Ex. 22 No. 2588 square cocktail table, Danish, modern

Ex. 23 No. 2584 corner table 8th item, indictment

Ex. 25 No. 2553 cocktail table 10th or 11th item, indictment

Ex. 26 No. 2514 cocktail table 10th or 11th item, indictment

(Ronello Reynolds explained that a gossip bench and a telephone bench are one and the same article.)

The. record then manifestly discloses that several of the 27 items enumerated and described in the indictment are identical with testified descriptions of certain units included within the group of Ex. 1 through 26. In respect to each and every individual chattel so demonstrated by evidence as present simultaneously and coexistently both in the indictment and amongst Ex. 1 through 26, there is the testimony of George Webber that he stole from Reynolds Brothers, Inc. and sold to a knowing Sanborn several facsimiles of that specific object. The Ex. 1 through 26 thus designedly or merely fortuitously served to supply several replicas both of some articles which had been allegedly pilfered by George Webber and sold to the aceusedly culpable Sanborn and also of those same articles as they appear by name in the catalogue of the indictment. Many units amongst Ex. 1 through 26, therefore, had a serviceful office as concrete visual aids in contribution to the prima facie case which the State had no doubt achieved.

It had been incumbent upon the State to afford credible evidence of the felonious buying, receiving and concealing by Sanborn of only one article as listed in the indictment. As stated in Criminal Pleading and Practice, Beale, Sec. 110, P 113:

“---Where an indictment alleges the larceny of several articles, a conviction may be had, though some of the articles are insufficiently described, or are not proved to have been taken (Maloney v. S.—Tex. C. R.—45 S. W. 718); where an obtaining of goods is alleged by several false pretences, it is enough to prove one; where in an indictment for perjury several false statements are averred, conviction may be had on proof of one (C. V. Johns, 6 Gray, 274; Harris V. P., 64 N. Y. 148) where an act is alleged to have been done with several intents, proof of one is enough (R. V. Evans, 3 Stark, 35)”

Upon the case record to the moment of their admission by the Court Ex. 1 through 26 were proper evidence upon applicable and sound theory. Some of such exhibits were at least replicas or facsimiles both of chattels assertedly stolen by Webber and sold to Sanborn and of certain chattels set forth in the indictment. All of Ex. 1 through 26 had been placed through testimony in the possession of Sanborn who could not have purchased them from Beynolds Brothers, Inc. which had manufactured them. They were identical with chattels stolen by Webber from the factory and sold by him to Sanborn. Credible circumstantial evidence afforded a basis of inference that Ex. 1 through 26 were personal property stolen by Webber, sold by him to a knowing Sanborn and latterly discovered in Sanborn’s possession. The factory had sold no furniture to Webber or Sanborn or to any person other than factory dealers. Those amongst Ex. 1 through 26 which had been described by witnesses variantly from the representation of articles listed in the indictment were, because of testimony in the case and subject to proper instruction from the court, eligible in evidence as stolen property possessed by Sanborn. Such exhibits were probative in establishing scienter and intent. Nickerson v. Gould, 82 Me. 512, 515; State v. Smith, 140 Me. 255, 274, 276; State v. Carson, 66 Me. 116, 118; State v. Acheson, 91 Me. 240, 246; State v. Fogg, 92 N. H. 308, 311, 30A (2nd) 491, 493; Wigmore on Evidence, 3rd Ed., §§ 153, 324, 325, 327, 2513; Annotation 3 A. L. R. 1213, 1219, 1220.

However, subsequent to the admission of Ex. 1 through 26, with the exception of Ex. 11, in evidence and following the conclusion of the State’s case the prosecutor by leave of court recalled Bonello and Edward Beynolds to testify further, with the following results:

BONELLO BEYNOLDS

“Q. Did you, if I remember correctly, did you testify in direct examination that it wasn’t your practice to sell to any individuals?

A. Yes.

Q. Is that the part you wish to explain?

A. Yes.

----It was common practice to sell any furniture which we made, not only which we made but which we were able to buy, to the employees at cost. That’s been a common practice and being so common a practice I forgot it at the time.

Well, I forgot that we did. It was so common a practice to sell to employees at cost that I forgot that. I answered your question meaning anyone outside.

Sold them anything they wanted. Sometimes they bought pieces to put together themselves, sometimes they bought first quality.

Q. Referring to State’s exhibit from 1 to 26 or similar articles of furniture, did you ever sell any of those to George Webber?

A. No.

Edward Reynolds

“I made the statement that I had sold no furniture to anyone in 1956, and I wish to retract that statement and make an exception, I have sold furniture to employees.

I just didn’t think, it was natural to sell to employees.

Q. Well did you sell to any outsiders?

A. No.

Q. Did you ever sell any of the furniture that has been admitted as exhibits in this case or any similar furniture to George Webber?

A. No.

Q. Didn’t you testify then under oath that you never sold any similar pieces as described from State’s exhibits 1 to 26 to anyone?

A. I did.

Q. And you still stick to that?

A. No, I make the exception we sold to employees.

Q. From 1 to 26? Some of this stuff?

A. Oh yes.

I sold to several employees.”

The State rested after the recall of the Reynolds. The Respondent had presented one witness, who was being cross examined when the presiding Justice spontaneously recessed the trial and informed counsel of an urgency to confer with them upon a matter of law. The Justice thereupon addressed counsel as follows:

“Gentlemen, as you know, during recess I have been considering the question as to whether I should declare a mistrial in view of the fact that exhibits 1 to 26 have been introduced and admitted, and a great deal of testimony concerning exhibits 1 to 26 has been admitted over the objections of the respondent, and now it appears to me in view of the testimony we heard this morning from Ronello and Edward Reynolds, those exhibits and a great deal of that testimony should not have been admitted, and would not be admitted if that testimony had been given prior to the rulings the Court made on the various points concerning the exhibits as they came up. Had I known that the Reynolds Brothers sold furniture to their employees as they have said this morning, I would not have admitted State’s 1 to 26; and I would not have allowed a great deal of testimony which was given concerning those exhibits, and so as you know, I have been considering whether I should declare a mistrial, and I expect, Mr. Niehoff, you would like to state your position?”

Defense counsel forthwith objected to the granting of a mistrial. He expressed a willingness to waive the objection upon certain stated conditions which the Justice deemed unacceptable. The Justice continued:

“I am going to decline to do that Mr. Niehoff, because I am convinced that that testimony concerning the exhibits is so involved with all the other testimony in the case, I don’t feel the jury could be expected to understand what they are to disregard and what they are not to disregard. And it appears to me that the only way a fair trial can take place in this case is — or I should say it appears to me there is no way a fair trial could take place if the case continues before this jury, it has heard so much testimony which now appears to have been testimony they should not hear, and so over - - in spite of the suggestion and the offer which you have made, I am going to declare a mistrial - - - so I am ordering a mistrial.”

Defense counsel straightway excepted.

A resultant of such later and corrective testimony of the two Reynolds brothers was to concede possibilities of Sanborn having obtained furniture from Reynolds Brothers, Inc. mill legitimately and from sources other than George Webber. The revised testimony quite dispelled the significance of the narrated circumstance that Sanborn had had in his possession Ex. 1 through 26 which he had sold to Pitt J. Smith and which the latter had produced in court. The rectified testimony served to render no longer factually inferential but merely conjectural a conclusion that Ex. 1 through 26 were some of the very objects stolen by Webber and assertedly sold to Sanborn. Nevertheless the chastened testimony did not annul the admissibility of several of Ex. 1 through 26. Many such exhibits by testified description and classification had counterparts in the indictment list and so had had a proper and abiding function as visual aids or models. Wigmore on Evidence, 3rd. Ed., sec. 439, 791, 793; American Law Institute; Model Code of Evidence, Rule 105. It remained that many of the controversial exhibits had qualified for admission and had been admitted.

The testimony of the Reynolds brothers in so far as it had been self-contradictory had been evidentially repudiated by their recantation. Also in the same aftermath the testimony and written evidence from Pitt J. Smith concerning* Sanborn’s possession and sale to Smith of Ex. 1 through 26 had been revealed as devoid of probative office and calculably hurtful to the Respondent. The testimony of Sheriff Heath as to his impounding of Ex. 1 through 26 assumed an objectively illicit status. Nevertheless testimony of George Webber concerning his theft and sales to Sanborn of facsimiles of certain of Ex. 1 through 26 which had not been described in the indictment remained legitimate with suitable jury instruction. State v. Carson, 66 Me. 116, 118; State v. Witham, 72 Me. 531, 535; Nickerson v. Gould, 82 Me. 512, 515; State v. Acheson, 91 Me. 240, 246.

The trial was by definition criminal and not civil. Participation in it by the Respondent was by constraint. He had not been an accessory to any dilemma precipitated by the retraction of the Reynolds brothers. Not so, as to the State. The pre-trial conferences of the prosecution with those 2 witnesses could hardly have been thorough or adequate. Routine inquiry of the Reynolds brothers by the prosecutor in advance of the trial would have obviated the incorrect testimony.

The Constitution of Maine, Article 1, guarantees against the oppressive evils of double or former jeopardy.

“Section 6. No person, for the same offense, shall be twice put in jeopardy of life and limb.”

The Constitution of the United States contains a like provision. Amendments, Article V.

The Respondent’s plea of double or former jeopardy raises an issue which has been expressed beyond betterment by this court in State v. Slorah, 118 Me. 203, 208, as follows:

“The respondent urges in support of his exceptions as a matter of law that jeopardy began when the jury was impanelled and sworn at the January term, and that when jeopardy has once attached he was entitled to a verdict from the jury of either guilty or acquittal; that if the case was withdrawn by the court from the jury without his consent, except for what has been termed, by the courts, urgent, manifest or imperious necessity, he should be discharged and may plead former jeopardy, if placed on trial again on the same indictment or for the same offence. Such we hold to be the law.” (italics supplied)

Protection against former or double jeopardy is a basic and fundamental right. Yet there can supervene circumstances, conditions and uncontrollable mischances obtruding themselves into criminal trials from time to time rendering it necessary that a Justice administering the trial without the consent of the accused end the proceedings and discharge the jury before verdict to maintain and preserve impartial justice for respondent or State or both. No human being could a priori anticipate the varieties of such crises. When the cogency for a mistrial becomes sufficiently impelling and where a response to it cannot be justly protested by the respondent a second trial does not violate the latter’s fundamental privilege. Were it otherwise many guilty could secure unconscionable impunity through pure mishap or their own malfeasance.

An early and venerated authority is U. S. v. Perez, 9 Wheat. 579, 580: (jury unable to agree)

“---We think that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it it impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of their discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.----” (italics ours)

As is said in State v. Slorah, 118 Me., 209, 210:

“Certain conditions, if arising, in the trial of a case, have come to be well recognized as constituting that ‘urgent necessity’ which will warrant the discharge of a jury, and if they appear of record will bar a plea of former jeopardy: (1) the consent of the respondent, (2) illness of the court, a member of the jury, or the respondent, (3) the absenting from the trial of a member of the panel or of the respondent, (4) where the term of court is fixed in duration and ends before verdict, (5) where the jury cannot agree.

“Of the conditions, except as found in the decided cases, more cannot be said than that in all cases, capital or otherwise, they must be left to the sound discretion of the presiding Justice, acting under his oath of office, having due regard to the rights of both the accused and the State, and subject to review by this court;---” (italics ours)

As to “sound discretion” this Court commented in Charlesworth v. Amer. Express Co., 117 Me., 219, 221:

“- - - It must be sound discretion exercised according to the well established rules of practice and procedure, a discretion guided by the law so as to work out substantial equity and justice. It is magisterial, not personal discretion. The chief test as to what is or is not a proper exercise of judicial discretion is whether in a given case it is in furtherance of justice. If it serves to delay or defeat justice it may well be deemed an abuse of discretion.---”

In U. S. v. Whitlow, 110 F. Supp. 871, 872 the Court commented:

“Ordinarily a defendant in a criminal case has the privilege, granted to him by the above-mentioned clause of the Constitution of securing a verdict from the jury originally impaneled and sworn to try him. This guaranty is no mere technicality, but constitutes a substantial right. It not only safeguards the defendant against being put to the agony, expense, and trouble of a second trial, but it also entitles him to secure a verdict from the particular jury that has started to hear the case. This privilege may prove at times very valuable, because the defendant may feel that the jury which is trying the case may be more favorably disposed to him than some future jury might be.”

In Baker v. Commonwealth, 280 Ky. 165, 132 S. W. (2nd) 766, 768 we find:

“In the present case the accused had participated in the selection of a jury and were willing to risk their chances with the jury thus selected but the action of the trial court compelled them to assume the additional peril of being tried by a different jury.”

It is noteworthy that in the present case, apart from prospects of acquittal, the Respondent, John B. Sanborn, at mistrial had achieved considerable progress. He was being tried under R. S., c. 132, sec. 11, a statute with special provisions as to degrees of punishment. He had succeeded in substantially reducing the number and aggregate value of chattels which the State by the indictment could persist in contending he had culpably bought and received. He may have already dwarfed the accused offense from felony to misdemeanor. He had attained some positive advantage.