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of each lobster, measured from the bone of dollar for each lobster so 'caught the nose to the end of the bone of the middle or in possession—not so liberated." In both flipper of the tail, said length being then and of these cases it was decided that the statuthere taken in a gauge with a cleat upon tory offense, and the penalty prescribed thereeach end of the same, measuring ten and one for was for not liberating such lobsters alive. half inches between said cleats, wit the lob
But by chapter 284, p. 305, § 21, Pub. Laws ster laid and extended upon its back its nat 1901, the words at the end of the clause “not ural length upon the gauge, without stretch so liberated” were omitted. As the statute ing or pulling, against the peace of the state now reads the offense, and the penalty thereand contrary to the form of the statute in for, is, among other things, having in possuch case made and provided.”
session short lobsters for any purpose. The Argued before WISWELL, C. J., and EM
fact that such lobsters were liberated alive ERY, WHITEHOUSE, SAVAGE, and PEA
by the person having them in possession may BODY, JJ.
be shown in defense, but it is not now necesWeston M. Hilton, Co. Atty., for the State.
sary to allege in the indictment that they C. R. Tupper, for defendant.
were not so liberated alive.
It was unnecessary to allege that the live
lobsters mentioned in the indictment were WISWELL, C. J. In an indictment under
less than 1012 inches in length when caught. Rev. St. C. 41, § 17, it was charged that the
But it was necessary to make this allegation respondent, at the time and place named
with reference to the cooked lobsters. This therein, "did have in her possession sixty
was decided in Thompson v. Smith, 79 Me. seven live lobsters and fifty-three cooked lob
160, 8 Atl. 687, wherein the court, in consters, each less than ten and one half inches in length, then and there measured in man
struing the statute then. in force, said: “It ner as follows." Then followed the language
must mean this: That it is illegal for any of the statute as to the method by which the
person to have in his possession a live loblobsters were measured.
ster less than nine inches long, or a dead lobThe respondent filed a general demurrer to
ster, no matter what the length which was this indictment, which was overruled, and the
less than nine inches long when alive; that
is, when taken from the sea. case comes here upon exceptions thereto. It
No person can is argued that the indictment is bad in three
have a lobster in his possession which, when respects: (1) Because of duplicity; two dis
alive, was less than nine inches long. But if tinct offenses, it is claimed, being charged in
a person has in his possession a boiled lobone count of the indictment. (2) Because of
ster less than nine inches long, and the same the want of an allegation that the lobsters
lobster was nine inches long when alive, in were not liberated alive at the risk and cost
such case no offense is committed by the posof the parties taking them.
session.” No change has been made which
(3) Because it is not alleged that the lobsters were less than
would affect the meaning of the statute, in 1012 inches in length when caught.
this respect, since this construction by the We do not think that two offenses are
court of a prior act in 1887. The result is charged in the same indictment. It is simply
that the indictment must be regarded as charan allegation that the respondent bad in her
ging the respondent as having in her possespossession a certain number of short lobsters,
sion the 67 live lobsters only. To that extent a part of them alive and a part of them cook
the indictinent is good. By stipulation made ed. It is one offense only. Under this in
at the time the demurrer was filed the redictment, so far as this point is concerned, spondent has a right to plead over. the respondent might be found guilty of il
Excentions overruled. legally having in her possession any number
Indictment adjudged good. of short lobsters less than the whole number , alleged. Thompson v. Smith, 79 Me. 160, 8 Atl. 687. The indictment is not bad for du
(102 Me. 310) plicity.
STATE v. HERLIHY. Under chapter 275, p. 225, § 3, Pub. Laws
(Supreme Judicial Court of Maine. Dec. 18, 1885, in force when the indictment in State
1906.) v. Bennett, 79 Me. 55, 7 Atl. 903, was drawn,
1. CRIMINAL LAW-DEATH OF WITNESS-SECthe omission to allege that the lobsters were OND TRIAL-ADMISSION OF EVIDENCE. not liberated alive would have been fatal. It At the trial of the respondent before the was so decided in that case, and affirmed in
Ellsworth municipal court, upon the charge of State v. Dunning, 83 Me. 178, 22 Atl. 109.
keeping intoxicating liquors intended for un
lawful sale, one J. M. McFarland testified as The statute then was: “It is unlawful to a witness called by the state. The respondent catch
or possess for any purpose" was found guilty in that court and sentenced, between the dates named "any lobsters less
and the case was then brought to the Supreme
Judicial Court for Hancock county upon the than ten and one-half inches in length, alive
respondent's appeal. Prior to the trial in the or dead,
and any lobsters shorter appellate court, McFarland died. At that trial, than the prescribed length when caught shall
the death of McFarland having been shown.
the state offered to prove his testimony at be liberated alive at the risk and cost of the
the first trial of the case, before the munic parties taking them, under a penalty of one ipal court, by the judge of that court who pre
sided at the trial. This testimony was ad lation of the liquor law, and excepts. Exmitted subject to the respondent's exception. ceptions overruled.
The rule is so general as to have become practically, universal that the testimony of a Search and seizure process on a complaint witness, since deceased, given at a trial in
and warrant under Rev. St. C. 29, $ 49, issued which he was cross-examined by the opposite out of the Ellsworth municipal court. On party, or where there was an opportunity for cross-examination, is admissible in evidence at
this warrant search was made, and certain a subsequent trial of the same action or pro• liquors were seized in a certain building at ceeding.
Bar Harbor, and the defendant was arrested (Ed. Note.-For cases in point, see Cent. Dig. and arraigned before the Ellsworth municivol. 14, Criminal Law, 88 1231-1234.]
pal court, where he was tried and found 2. SAME.
guilty and sentenced to pay a fine of $100 and The testimony of a deceased witness, on a former trial of the same action, may be given
costs, and to be imprisoned 60 days. The de in evidence, if the substance of it can be fendant then appealed to the Supreme Judi. proved, although the exact language cannot be. cial Court That it is sufficient to prove the substance of
During the trial in the Ellsworth municthe testimony of a deceased witness, as held by the court of Maine, is now the almost universal
ipal court, one J. M. McFarland testified doctrine.
against the defendant in behalf of the state, [Ed. Note. For cases in point, see Cent. Dig. but before the case came on for trial in the vol. 14, Criminal Law, 88 1236-1246.]
Supreme Judicial Court on the defendant's 3. SAME.
appeal, the witness McFarland had died, Held, that the testimony of the judge of
wbich fact was duly shown. Thereupon at the Ellsworth municipal court, who did not pretend to be able to recollect the precise words
the trial in the Supreme Judicial Court, the of the deceased witness, but who testified that judge of the Ellsworth municipal court, be he could give the substance of the whole of his fore whom the case was first tried, was altestimony at the former trial of the case, that
lowed to testify against the defendant's obtestimony having been given in the presence of the accused, where he had an opportunity to
jection, for the purpose of proving the testicross-examine the witness, was properly ad mony of the deceased witness, McFarland, at mitted in evidence.
the former trial. Also at the trial in the Su(Ed. Note.-For cases in point, see Cent. Dig. preme Judicial Court, the defendant took vol. 14, Criminal Law, 88 1236–1246.]
the stand and testified in his own behalf. 4. SAME-PLEA OF NOLO CONTENDERE.
After his testimony was in, the state, for the At the trial in the appellate court the respondent took the stand and testified in his
purpose of affecting the credibility of the de own behalf. Thereupon the state, for the pur
fendant, and against the defendant's objec pose of affecting the credibility of the respond tion, was allowed to introduce certain rec ent as a witness, offered the records of this ords of the Supreme Judicial Court, which, court, which, it was claimed, showed the respondent's conviction of criminal offenses upon
it was claimed, showed the defendant's contwo occasions. The record offered in each case
viction of criminal offenses upon two occacontained a summary of the indictment against
sions. These records show that the defend. the respondent, certain statements as to the ant had previously been indicted for being a apprehension of the respondent, and a continuance of the case, and concluded as follows:
common seller of intoxicating liquors, and “And now at this term, the respondent is set
also for keeping and maintaining a drinking at the bar of the court and the reading of the house and tippling shop, and that upon his indictment waived, and the respondent says arraignment on these indictments he had that he is not willing to contend against the
plead “nolo contendere" in each case, and state. Whereupon, the court orders and sentences that the said Daniel H. Herlihy pay a
had been duly sentenced in each case. fine of $100 and no costs. Fine paid April 18, To the aforesaid rulings admitting the tes1904." These records were admitted in evi
timony of the judge of the Ellsworth municdence for the purpose stated, subject to the respondent's exceptions.
ipal court and the aforesaid records, the de The plea of nolo contendere is an implied fendant took exceptions. confession of the offense charged, and the judg At the trial in the Supreme Judicial Court, ment of conviction follows that plea as well as the defendant was found guilty, and was the plea of guilty. It is not necessary that the court should adjudge that the respondent was
sentenced to pay a fine of $100 and costs, guilty, for that follows by necessary legal in
and to be imprisoned 60 days. ference from the implied confession.
Argued before WISWELL, C. J., and EM(Ed. Note.-For cases in point, see Cent. Dig. ERY, SAVAGE, POWERS, and SPEAR, JJ. vol. 14, Criminal Law, $ 635; vol. 15, Criminal Law, &$ 2493–2496.]
Charles H. Wood, Co. Atty., for the state. 5. WITNESSES-IMPEACHMENT-EVIDENCE.
E. S. Clark, for defendant. Held, that the records offered and admitted in the case at bar were admissible for the purpose of affecting the credibility of the respond WISWELL, C. J. This case comes to the ent, who had become a witness in his own be law court upon two exceptions by the re half.
spondent. TEd. Note.-For cases in point, see Cent. Dig.
1. At the trial of the respondent before vol. 50, Witnesses, $8 1126-1128.]
the Ellsworth municipal court, upon the (Official).
charge of keeping intoxicating liquors intendExceptions from Supreme Judicial Court, ed for unlawful sale, one J. M. McFarland Hancock County.
testified as a witness called by the state. Daniel H. Herlihy was convicted of a vio The respondent was found guilty in that
court and sentenced, and the case was then cases in other jurisdictions in which the Virbrought to the Supreme Judicial Court for ginia case was followed, it is said: “Apart Hancock county upon the respondent's ap from these rulings, it is well and properly peal. Prior to the trial in the appellate settled that such evidence assuming always court, McFarland died. At that trial, the that there has been a due cross-examinationdeath of McFarland having been shown, the is admissible for the state in a criminal prosstate offered to prove his testimony at the ecution, without infringing the Constitution." first trial of the case before the municipal And see the cases therein cited. In the Mascourt, by the judge of that court who pre sachusetts case above referred to of Comsided at the trial. This testimony was ad monwealth v. Richards, it was held that tesmitted subject to the respondent's exception. timony of this character was admissible in a
The rule is so general as to have become criminal trial against the accused. practically universal that the testimony of But the principal contention of counsel for a witness, since deceased, given at a trial in the respondent in regard to this exception is which he was cross-examined by the opposite that, where it is sought to prove the testimoparty, or where there was an opportunity ny of a witness at a former trial since defor cross-examination, is admissible in evi ceased, it must be proved by some witness dence at a subsequent trial of the same ac who can remember not only the substance of tion or proceeding. This rule is supported the whole testimony, even to his precise by so many authorities throughout the coun words. In support of this contention he retry that it would be impracticable to make lies upon the case of Commonwealth, supra, any attempt to enumerate them. They may where that doctrine was laid down, and upon be found in the notes in 11 A. & E. Encycl. certain other Massachusetts cases in which of L. (2d Ed.) 523, 526, and in 12 Cyc. 544. it was followed. This has never been the It was early held to be the rule in Massachu. rule in this state. Upon the contrary, in setts in Melvin v. Whiting, 7 Pick. 79, and Emery v. Fowler, supra, and in Lime Rock in Commonwealth v. Richards, 18 Pick. 434, Bank v. Hewett, supra, the opposite doctrine 29 Am. Dec. 608. In this state the doctrine was distinctly held. In the latter case, the was first established in Watson v. Proprie. court said: “The testimony of a deceased tors of Lisbon Bridge, 14 Me. 201, 31 Am. witness, on a former trial of the same acDec. 49, wherein the court says: “We doubt tion, may be given in evidence, if the subnot it was competent for the plaintiff to stance of it can be proved, although the exprove what a deceased witness had testified act language of the witness cannot be." to at a former trial of this cause. It is lia The almost utter uselessness of a rule ble to no legal objection, and is well sustain which permits the testimony of a deceased ed by authority and the practice of our witness at a former trial to be given at a courts." This case was followed by Emery v. subsequent trial of the same cause, but which Fowler, 39 Me. 326, 63 Am. Dec. 627, and requires it to be repeated in the precise lanLime Rock Bank v. Hewett, 52 Me. 531.
guage of such witness, is so apparent that It is true that in some jurisdictions it has this qualification of the rule has never been been thought that the rule was not applica- | generally adopted. That it is sufficient to ble in criminal trials because of the right prove the substance of the whole testimony of confrontation, so called, secured to re of the deceased witness, as held by the Maine spondents in most states by a constitutional cases, is now the almost universal doctrine. provision similar to that contained in our See the cases cited in an extensive note to Constitution, as follows: "In all criminal Atchison, etc., R. R. Co. v. Osborn (Kan.) in prosecutions the accused shall have a right 91 Am. St. Rep. 189. See, also, 2 Greenl. on
to be confronted by the witnesses Evidence, $ 169, cited and adopted in Lime against him." This whole subject, including Rock Bank v. Hewett, supra. The testimony the effect of such a constitutional provision, of the judge of the Ellsworth municipal court, is very philosophically considered in Wig who did not pretend to be able to recollect more on Evidence (volume 2, § 1395 et seq.), the precise words of the deceased witness, but wherein it is shown that the main and es who testified that he could give the substance sential purpose of confrontation is to secure of the whole of his testimony at the former the opportunity of cross-examination; that trial of the case, that testimony having been although there is a secondary purpose, that given in the presence of the accused, where of having a witness present before the tribu he had an opportunity to cross-examine the nal which is engaged in the trial of the case, witness, was properly admitted in evidence. this is merely desirable, and, where it cannot 2. At the trial in the appellate court, the be obtained, need not be required. In section respondent took the stand and testified in his 1396, it is said: “If there has been a cross own behalf. Thereupon the state, for the examination, there has been a confrontation. purpose of affecting the credibility of the reThe satisfaction of the right of cross-examin spondent as a witness, offered the records of ation disposes of any objection based on the this court, which, it was claimed, showed the so-called right of confrontation.” In section respondent's conviction of criminal offenses 1398, after referring to a contrary decision upon two occasions. The record offered in in an early Virginia case, which served for each case contained a summary of the indict. awhile to keep a doubt alive, and of a few ment against the respondent, certain state
ments as to the apprehension of the respond tries were held admissible for this purpose. ent, and a continuance of the case, and con We have no doubt of the admissibility of cluded as follows: "And now at this term, the records offered and admitted in the case the respondent is set at the bar of the court, at bar, for the purpose of affecting the credi. and the reading of the indictment waived, bility of the respondent, who had become a and the respondent says that he is not wil witness in his own behalf. ling to contend against the state. Whereup Exceptions overruled. on, the court orders and sentences that the said Daniel H. Herlihy pay a fine of $100 and no costs. Fine paid April 18, 1904."
(102 Me. 317) These records were admitted in evidence for INHABITANTS OF PALMYRA V. WAVERthe purpose stated, subject to the respond
LY WOOLEN CO. ent's exceptions. The contention of counsel (Supreme Judicial Court of Maine. Dec. 18, for the respondent is that the records do not
1906.) show the conviction of the respondent, be WATERS AND WATER COURSES-DAMS-FRESHcause there was no adjudication of guilt by
ETS-INJURIES-- LIABILITY-EVIDENCE. the court, and because the plea was that of
This is an action originally brought for the
recovery of damages for the loss of a bridge nolo contendere, rather than of guilty. erected and maintained by the plaintiffs across
By Rev. St. C. 84, § 119: “No person is in Sebasticook river, in the town of Palmyra, alcompetent to testify in any court or legal leged to have been destroyed by reason of a
dam built by the defendant across the river, beproceeding, in consequence of having been
low the bridge. By amendment it was converted convicted of an offense; but such conviction into an action for the recovery of the money may be shown to affect his credibility." The expended in erecting a new bridge to take the question, then, is: What must the record
place of the one carried away. After the plain
tiffs had presented all their evidence, the precontain in order to make it admissible for the
siding justice ordered a nonsuit, to which the purpose of proving the conviction of a wit plaintiffs excepted. ness and as affecting his credibility? This
The case has once been before the law court, question has been recently settled in this
and is reported in 99 Me. 134, 58 Atl. 674. In
the first trial the plaintiffs recovered a verdict, state, with reference to the admissibility of and upon motion by the defendant the court the record of a conviction, for this precise set the verdict aside. The ground upon which purpose, in the case of State v. Knowles, 98
the court proceeded in concluding to set the Me. 429, 57 Atl. 588, wherein it is said: “It
verdict aside was that the freshet which carried
the bridge away was very unusual, although matters not whether the guilt of the accused not unprecedented. In the opinion in that case has been established by plea or by verdict of
the court said: “In freshet in 1901, the water guilty. When no issue either of law or of
of the river rose suddenly and so high that at
the bridge it reached the bottom of the strucfact remains to be determined, and there is
ture, and the cakes of ice floating down struck nothing to be done except to pass sentence, the bridge and threw it down into the river. the respondent has been convicted, and the
There was no evidence that the defendant comrecord of that conviction, or the docket en
pany did not exercise all due diligence to give
the freshet free vent through the gates and tries where no extended record has been waste ways of the dam. The only complaint made, are admissible against him to prove
was that the dam was too high.
The such conviction."
bridge was not injured by the highest water of The records of these convictions show that
any freshet for a decade. The freshet, in which
it was carried away by the ice brought down there was no issue of law or of fact to be by the current, was a very extraordinary one, determined, both cases were ready for sen caused by unusually heavy rains at the season tence, and sentence was in fact imposed in
of melting snows. This was to human ken a both cases.
fortuitous and very infrequent combination of The plea of nolo contendere is
powerful natural causes, unusual and unexpectan implied confession of the offense charged. ed. The resulting loss must, therefore, remain The judgment of conviction follows that where it fell." plea, as well as the plea of guilty. "And it
Held, that the court is unable to discover in
the testimony in the second trial any new eviis not necessary that the court should ad
dence which sufficiently changes the aspect of judge that the party was guilty, for that fol the case with reference to the duty of the delows by necessary legal inference from the fendant or the severity of the freshet which implied confession." Commonwealth v. Hor
carried away the bridge, so as to warrant the
court in sustaining the exceptions to the ruling ton, 9 Pick. (Mass.) 206. “A plea of nolo of the presiding justice ordering a nonsuit. contendere, when accepted by the court, is, in See 58 Atl. 674, 99 Me. 134. its effect upon the case, equivalent to a plea (Official.) of guilty.
If the plea is accepted, it is not necessary or proper that the court Exceptions from Supreme Judicial Court,
Somerset County. should adjudge the party to be guilty, for that follows as a legal inference from the
Action by the inhabitants of Palmyra implied confession." Commonwealth v. In
against the Waverly Woolen Company. Judg. gersoll, 145 Mass. 381, 14 N. E. 449. In the
ment of nonsuit, and both parties except. case of State v. Knowles, supra, the docket
Plaintiffs' exceptions overruled. entries, the record not having been extended, Action on the case originally brought for did not show an adjudication of guilt by the recovery of damages for the loss of a the court, or sentence, each case having been bridge erected and maintained by the plaincontained for sentence, but these docket en tiffs across the Sebasticook river, in the town
loss of a bridge erected and maintained hos I
of Palmyra, alleged to have been destroyed , extraordinary one, caused by unusually heavy by reason of a dam built by the defendant rains at the season of melting snows. This across said river, below the bridge. By was to human ken a fortuitous and very inamendment the action was converted into an frequent combination of powerful natural action for the recovery of money expended causes, unusual and unexpected. The resultby the plaintiffs in erecting a new bridge to ing loss must, therefore, remain where it take the place of the one carried away. Το fell." the allowance of said amendment the defend If this was a correct basis for setting the ant took exceptions, but the same were not first verdict aside, we are unable to discover considered by the law court. At the conclu in the testimony in the second trial any new sion of the plaintiffs' evidence, in the second evidence which sufficiently changes the aspect trial, the presiding justice ordered a non of the case, with reference to duty of the de suit, and thereupon the plaintiffs took excep fendant or the severity of the freshet which tions.
carried away the bridge, to warrant us in This case has once been before the law sustaining the exceptions to the ruling of court, and the same is reported in 99 Me. the justice ordering a nonsuit. 134, 58 Atl. 674.
The plaintiffs, however, claim that they Argued before WISWELL, C. J., and EM have produced such new and material eviERY, WHITEHOUSE, SAVAGE, PEABODY, dence, both upon the frequency and degree and SPEAR, JJ.
of the freshets occurring upon this river pre
vious to 1901, that the question of fact whethForrest Goodwin, for plaintiffs. Moore &
er the defendant should not have been held Anderson and Manson & Coolidge, for de
to anticipate the occurrence of just such a fendant
freshet as took away the bridge, and to have
provided measures to prevent it, should have SPEAR, J. This is an action originally been submitted to the jury. brought for the recovery of damages for the Practically all the new evidence that bears
upon these points is obtained from witnesses the plaintiffs across Sebasticook river, in the who lived many miles below the locus of the town of Palmyra, alleged to have been de bridge, at a point where the witnesses themstroyed by reason of a dam built by the de selves admit the status of recurring freshets fendant across the river, below the bridge. may be influenced by conditions that do not By amendment it was converted into an ac obtain at all at the locus in question. Most tion for the recovery of the money expended of these witnesses live in the vicinity of Winsin erecting a new bridge to take the place low and Benton and have observed the freshof the one carried away. After the plaintiffs ets at these points below the dam at Benton had presented all their evidence, the presid Falls and upon the course of the Sebasticook ing justice ordered a nonsuit, to which the river almost at its junction with the Kenne plaintiffs excepted. To the allowance of the bec. These witnesses admit that the height amendment the defendant also excepted. of the freshets at Winslow and vicinity may Therefore the case comes up on exceptions by be to a greater or less degree controlled by both parties. As the plaintiffs' exceptions the condition of the water in Kennebec river. are decisive of the case, we need not consid Consequently, it appears that the height of er those of the defendant.
the freshet in April, 1901, upon the SebastiThe case has once been before the law court, cook, near the Kennebec, cannot be safely and is reported in 99 Me. 134, 58 Atl. 674. taken as a criterion from which to determine In the first trial the plaintiffs recovered a
the nature of the freshet existing at Palmyra. verdict and upon motion by the defendant, It may be said, however, that the testithe court set the verdict aside. The ground mony of the witnesses from the vicinity of upon which the court proceeded in concluding Winslow shows that the freshet at this point to set the verdict aside was that the freshet was one which, if not unusual and unexpectwhich carried the bridge away was very un ed, so excited the interest of the town ofusual, although not unprecedented. The court ficers that they initiated preparations for şay: “In the freshet in 1901, the water of the protection and safeguarding of their prop. the river rose suddenly, and so high that erty upon the river. The testimony of these at the bridge it reached the bottom of the witnesses, or one of them at least, also esstructure, and the cakes of ice floating down tablishes the fact that above Benton Falls at struck the bridge and threw it down into the one time an ice gorge existed occasioning a river. There was no evidence that the de rise of water so high as to overflow the elecfendant company did not exercise all due dil tric road and intervales. This class of eviigence to give the freshet free vent through dence, if submitted to the jury, should not the gates and waste ways of the dam. The have the effect in the mind of the court, if it only complaint was that the dam was too did in that of the jury, of overcoming the high.” Again, they say upon this same point: testimony of numerous witnesses who lived "The bridge was not injured by the highest in the vicinity of, and many in close proximiwater of any freshet for a decade. The ty to, the bridge that was carried away, the freshet in which it was carried away by the exact point of inquiry, whose evidence cerice brought down by the current was a very tainly tends to show that the freshet at this