Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1906-12-26
RESCRlPT IN LIQUOR CASE.

law Court Overrules Exceptions in
State VS.. Daniel II. HerIihy.
The decision of the law court in the
liquor case against Daniel H. Herlihy, of
Bar Harbor, has been handed down. 1t
overrules the exceptions. The rescript is
as follows:
State of Maine VS.. Daniel H. Herlihy. Re-
script by Wiswell, C. j.
At the trial of the respondent before the
Ellsworth municipal court, upon the charge
of keeping intoxicating liquors intended for
unlawful sale, one j. NJ. Mcfarland testified
as witness called by the State. The re-
spondent was found guilty in that court and
sentenced, and the case was then brought to
the supreme judicial court for Hancock
county upon the respondents appeal. Prior
to the trial in the appellate court, Mcfarland
died; at that trial the death of Mcfarland
having been shown, the State offered to prove
his testimony at the frst trial of the case, be-
fore the municipal court, by the judge of that
court who presided at the trial This testi-
mony was admitted subject to the respon-
dents exception.
The rule is SO general as to have become
practically universal that the testimony of a
d
which he was cross-examined by the opposite
party, or where there was an opportunity for
cross examination, is admissible in evidence
| at subsequent trial of the same action or
proceeding.
The testimony of a deceased witness on a
former trial of the same action, may be given
in evidence, II the substance of it can be
proved, although the exact language cannot
be. That it is sufficient to prove the sui
stance of the testimony Of a deceased witness,
as held by the court of Maine, is the al
most universal doctrine.
Held: That the testimony of the judge of
the Ellsworth municipal court, who did not
pretend to be able to recollect the precise
words of the deceased witness, but who testi-
fed that he could give the substance of the
whole of his testimony at the former trial of
the case, that testimony having been given in
the presence of the accused, where he had an
opportunity to cross examine the witness, was
properly admitted in evidence.
At the trial in the appellate court the re-
spondent took the stand and testified in his
own behalf. Thereupon the State, for the
purpose of affecting the credibility of the re-
spondent as witness, offered the records of
this court which, it was claimed, showed the
respondents conviction of criminal offences
upon two occasions. The record offered in
each case contained a summary of the indict-
ment against the respondent, certain state
ments as the apprehension OF the respondent
and continuance of the case, and concluded
| as follows: "And now at this term, the re-
| spondent is set at the bar of the court and the
\ reading OF the indictment waived, and the re-
spcndsnt says that he is not willing to con-
| tend against the State, Whereupon, tbs
court orders and sentences that the sale
Daniel H. Herlihy pay fine of one hundred
dollars and no costs. Fine paid April Is, 1904,
These records were admitted in evidence fol
the purpose stated, subject to the respond
| ent's exceptions.
| The plea of nolo eontendere is an implied
confession of the offence charged, and tbs
Judgment of conviction follows that plea as
well as the plea of guilty. It is not necessary
that the court should judge that the respond
end was guilty, for that follows by necessary
legal inference from the implied confession.
Held: That the records offered and ad-
mitted in the case at the bar, were admissible
for the purpose of affecting the credibility OF
the respondent who had become witness in
his own behalf.
Exceptions overruled.