State v. Fenlason

Emery, J. I. As to the admission of the testimony of Gray about threats made by the respondent to burn the building. Evidence of prior threats by a respondent to do the particular act he is charged with doing, is clearly admissible. No citation of authorities is needed to establish this proposition. The threats testified to by Gray were threats to burn the same building the respondent was charged with burning. It is urged in the argument that the ownership of the building had changed between the time of the threats and the time of the burning. The bill of exceptions does not state any such change of ownership. If there had been such a change it would weaken the force of the evidence, but we doubt if it would entirely exclude it. The evidence would still have some tendency to prove some element of the crime charged, the act, the intent, the malice, or at least the disposition of mind of the respondent. II. As to the presiding justice’s statement in his charge of what was uncontroverted. It is the duty of the presiding justice to present the case to the jury as plainly as possible. He should eliminate uncontro-verted matters and distinctly point out the precise issues. If he errs in assuming a matter to be uncontroverted which a party intended to controvert, his attention should be called to the error before the jury retire, that he may make proper corrections. Rule XT. Murchie v. Gates, 78 Maine, 300. In this case no. objection was made to the judge’s statement of the controversy, and indeed the bill of exceptions states that no such contention was made as the counsel now suggests. We therefore assume, that the controversy was correctly stated. [502] III. As to the expression in the charge upon the matter of the respondent’s attempted alibi. It is true, the respondent need not prove his alibi beyond a reasonable doubt. He may show where he was at the time the act was committed, and perhaps the farther off he was from the scene of action, the more doubt he raises as to his guilt. Still he may have ■ participated, though at a distance, and hence distance is not a conclusive answer to the indictment, unless it be so great as to render it impossible for him to have participated in the crime. It appears from the charge (the whole charge being made a part of the bill of exceptions) that the respondent’s counsel had claimed in his argument to the jury, there was "the most perfect proof of an alibi,” while the testimony of the respondent’s own witnesses showed that he was within twenty-five rods or thereabouts. The judge suggested to the jury to ascertain if the respondent was near enough to assist by giving warning or otherwise, and then in alluding to the counsel’s claim that an alibi was proved, used the expression complained of. Counsel seemed to contend that proof of any distance was proof of alibi, and hence a conclusive answer to the indictment. The judge simply stated in effect, that to make mere distance a conclusive answer, as an alibi, it must be shown to be so great as to render it impossible for the respondent to have participated. This was correct. IV. As to the Sunday proceedings. It is settled in this state that a jury may deliberate on Sunday and may write out and seal up their verdict on Sunday. True v. Plumley, 36 Maine, 466. The weight of authority is in favor of the proposition that the court may receive a verdict on Sunday, the case having gone to the jury before Sunday. Hoghtaling v. Osborn, 15 Johns. 119; Hurdekoper v. Collins, 3 Watts, 56; Baxter v. People, 3 Gil. 368, cited with approval in True v. Plumley; see also Van Riper v. Van Riper, 1 Southard, 176; Webber v. Merrill, 34 N. H. 202; State v. Ricketts, 74 N. C. 187; Reed v. State, 53 Ala. 502; see also notes to 12 Am. Dec. 291. If the jury may deliberate on Sunday and write out and seal [503] up their verdict on Sunday, if the court may receive the verdict on Sunday, it would seem the presiding justice might on Sunday send blank forms to the jury with instructions to write out and seal up the verdict when agreed upon, without thereby invalidating tlio entire proceedings. V. As to the sealing the verdict and the separation of the jury, before returning the verdict into court and there affirming it. It was resolved by this court as reported in 63 Maine, 590, that in any criminal case, where the punishment was not death or imprisonment for life, the jury might lawfully seal up their verdict, when agreed upon, and might then separate during a temporary adjournment of court. In this case the judge, in his charge, had expressly instructed the jury that the evidence showed no person lawfully in the house at the time of the firing, and that they must so find. This lowered the grade of the offence, from one necessarily punishable by life imprisonment, to one only discretionally so punishable. No verdict could he recorded for the greater offence. It is contended by the state that the case, at the time of the giving the directions to seal up the verdict, was thus one within the resolution of the court above cited. But however all this may be, and whatever might be our duty if the respondent had seasonably objected to what he now calls irregularities, it appears from his bill of exceptions that he and his counsel were present in court and saw all these things done and made no objection. No intimation was given to the presiding justice that the respondent or his counsel had any objection to any of these proceedings, or regarded them as possibly detrimental, or even irregular. An objection from the respondent would probably have prevented them. He probably saw no harm in them. They were not matters of substance. They were matter’s of purely formal procedure, which perhaps he might have insisted should be carried on after strict, ancient forms, but he did not so insist, nor even suggest. Having thus tacitly waived the irregularity, if any, and having permitted, without remonstrance, the court to order things for the admitted convenience of all persons concerned, he should not now have [504] these proceeding's quashed and another trial ordered, unless it appears he was at least probably prejudiced by the alleged irregularities. After conscientious study and reflection upon the case, we are satisfied that no harm was likely to come to him, and none did in fact come to him from the proceedings now complained of. VI. As to the dii'ection of the presiding justice to the jury to sign and return the special finding. This direction^ and the consequent special finding that no person was lawfully in the house at the time of the firing, was clearly for the benefit of the respondent. He did not object to it, and was not prejudiced by it. Exceptions overruled. Judgment on the verdict. Peters, C. J., Walton, Daneorth, Foster and Haskell, JJ., concurred.