State v. Germain
State v. Germain
Opinion of the Court
Defendant was found guilty of maintaining a liquor nuisance. The case is in this court on his bill of exceptions. After the jury was impanelled, on motion of the State and against the objection of defendant, the trial justice ordered a view. A request by the justice who went with the jury that defendant permit a view was refused; defendant stated that he had no control over the building and could not give permission. The justice then ordered the officers in charge of the jury to open the outside door which was locked. This door was pulled open and the jury entered and viewed the interior. On the return to the court room, defendant, for the first tine, made objection to the use of force in the presence of the jury in effecting the entrance claiming that it was improper and prejudicial to him. The trial justice refused to allow an exception on this ground, and stated that defendant, if he desired to press this particular objection, might do so by filing affidavits. No affidavits were filed and the exception as allowed is simply to the taking of a view of the interior of the building. This exception is without merit. The ordering of a view, and the attendance of the court thereat, are discretionary with the court; the proceedings at the view must be regulated by the court. (G. L. 1923, C. 342, s. 1.) The object of a view is not to get evidence in the case, but to enable the jury more clearly to understand the evidence presented at the trial. This established rule of our practice was recognized and approved in State v. Congdon, 14 R. I. 458. The fact that the jury has taken a'view does not limit the power of *271 the trial justice, or of this court, to consider the weight of the ■evidence. Davis v. Joslin Mfg. Co., 29 R. I. 101. The .action of the court in ordering a forcible entry may have been ill advised; but as defendant disclaimed any connection with or control over the building, he can not now claim that the wrong done as he then claimed to a third person was a violation of his rights in the trial of this case.
*273 *272 In the indictment it is alleged that the grand jury was impanelled June 4, 1923, and defendant did maintain a common nuisance from December 1, 1922, and thence continuously until the day of the finding of the indictment which, as it appears in testimony, was June 22, 1923. De *273 fendant objected to the admission of evidence of the reputation and conduct of the premises on June 6, 1923, and .claimed that any such evidence subsequent to the day the jury was impanelled was improper. The trial justice in the charge instructed the jury to disregard any evidence of reputation or conduct of the premises after June 4th. This instruction was erroneous but defendant secured the benefit thereof. The Superior Court is in session continuously from the third Monday in September to the second Monday of July in the following year (G. L. 1923, C. 325, s. 2); the grand jury is in attendance thereon the third Monday of September and the first Monday of December, March and June (C. 329, s. 39) and at any other time when summoned by the Superior Court (s. 39). The date of the presentment of the indictment, although not specifically stated in the indictment was a matter of court record of which the trial court, if it chose, could properly take judicial notice. On this indictment evidence up to the date of its presentment was properly admitted, that being the end of the period alleged in the continuando (State v. Nagle, 14 R. I. 331).
Defendant relies on State v. Bowes, 20 R. I. 310, and State v. Hill, 13 R. I. 314. In each of these cases the indictment was for keeping a common nuisance during a period between a given date and the day of the finding of the indictment, the day not being specified. It was held that such allegation of time was sufficiently certain, the presumption being that, no other date being specified, the indictment was found on the day that’.the grand jury was impanelled and sworn. In the Hill case the court cited with approval and in support of its conclusion, Commonwealth v. Wood, 4 Gray, 11; in the Wood case, after stating the rule as above, it was held that it was always competent to resort to the record for the purpose of fixing the exact date on which the indictment was found, whenever it became necessary to prove that it was found after the first day of the term.
Objection is made to the admission of evidence of ownership and occupancy of the premises, prior and subsequent to the period of time set out in the indictment. There was no error in this respect. Defendant’s contention throughout the trial was a denial of ownership or occupation.
Evidence of the illegal use of the premises is restricted to the period of time covered by the continuando. But evidence of ownership or occupancy, when either question is in issue, is not so restricted, but proof of either within a reasonable length of time either before or after, is admissible as evidence of ownership or occupation during the particular period stated, with the right of course in the defendant to rebut the natural presumption arising from such proof. State v. Knott, 5 R. I. 293. The evidence of defendant’s guilt is convincing.
The defendant’s exceptions are overruled and the case is remitted to the Superior Court for further proceedings.
Reference
- Full Case Name
- State v. Joseph Germain.
- Cited By
- 2 cases
- Status
- Published