Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-16

nnrtgagOrs to pay cash for these art
icles in order to keep the defendants
security urimpaired and they did not
become subject to the mortgage lien.
Motion sustained. New trial granted.
Androseoggin County.
State VS.. Fred Reed. Rescript, No opinion,
Per Curtain.
I. On the 25th day Of April, during the
April term, 1908, of the court in Andres
coggin county, the defendant was arrest
ed upon a bench warrant OF the same
date commanding his arrest that he might
answer upon an indictment for keeping
a liquor nuisance, etc. Upon such arrest
he gave bail before the clerk for his ap-
pearance from day to day, and later, at
the same term, was tried upon an indict-
ment duly found for keeping and main
tang liquor nuisance, and found guilty.
He thereupon moved for arrest of judg-
ment upon the ground that the record did
not show upon what day the indictment
was returned into court by the grand
Jury His argument is that no warrant
could lawfully be issued for his arrest
unit latter the indictment was returned
into court, and it not appearing that the
indictment was returned before the war
rant was issued, no authority appears for
issuing the warrant, and hence is and all
subsequent proceedings under it are void.
In the indictment, however, it is recited
that the grand jury made presentment
at the term begun and holden for Andres
coggin county on the third Tuesday of
April, A. D. 1908. That day was the 21st
day of April. In the absence Of competent
evidence to the contrary, that day, as
against a motion in arrest of judgment,
four days before the 25th may be as
sumed to be the day of finding and re-
turning the indictment. The grand jury
might have finished it's work on that day,
or it might have returned this particular
indictment on that day and then resumed
it's sessions. Had the indictment charged
an offence as committed after that day,
it must have been quashed on motion I'M
less it could have been made to appear
by other competent evidence that it was
in fact returned after the day Of the COM
mission of the offence. Com. v. Stone. 8
Gray, 453 Further, the court being SUI
perior court of general jurisdiction. it is
to be presumed in the absence of COM
petent evidence to the contrary that the
procedure was regular, and that the war
rant purporting upon its face to be issued
upon an indictment was not issued until
the indictment was found and returned
irto court.
The defendant. however, In further sup
port of his motion offered the oral tes-
ne he Ill of "a court that s"Tn
the best of my (his) recollection the grand
jury reported Monday" the 9th of April;
but he did not testify that this indict-
ment was not reported prior to the 9th,
while he did testify that he had the In
dictment when, on the 25th he took the
defendants recognizance for his appear
ance from day to day. Passing the ques-
ton whether the memory or want of
memory of the clerk as to the course of
procedure is competent after verdict to
rebut the presumption of regularity and
the recitals in the indictment itself. it is
evident that the clerks testimony in this
case is not sufficient for such rebuttal.
Whatever might have been the necessa-
ry result Of his objections If raised be-
fore verdict, we do not think he so far
shows cause for arrest Of judgment after
verdict.
II. The defendant also moved for ar
rest Of judgment upon the ground that
upon being put upon his trial before the
first jury, the court, against his ob1ec-
ton, excused eight jurors from that panel
and called eight other jurors to fill their
places. No request was made for drawn
jury.
The ground is not tenable. The defend
ant had no right to have any particular
persons on the jury. The court may in it's
discretion excuse one or more Jurors, or
an entire panel without violating the
rights of either party. If the jurors substi-
tuted in their places are duly qualified
Ware v. Ware. 8 Maine, AZ.
III. At the trial the State proposed to
prove O that the office of the Twin City
Express Co. in Lewiston was nuisance
because of it's use as place for the I'M
lawful keeping and sale Of intoxicating
liquors, and (2) that the defendant was
responsible for such use. The two propo-
sitions are distinct. While both must
| have been proved evidence which did not
| at all tend to prove the second was vet
/ - IL lcuucu " pAO'S Vic III ~.
| Therefore objections to such evidence
upon the ground that the defendant was
not present, or that it did not connect or
implicate him, must be overruled Many
of the exceptions were upon that ground
| and there is no need to consider them in
detail.
Objection was made to evidence of the
/ statements made to witnesses by one Nor.
neau and one Miner that they were agents
of the Twin City Express Co. 1t is admit.
ted. however, in the bill Of exceptions
that Morneau was the president of the
company and Miner the clerk of its Lew.
iston office. The defendant, therefore
was not prejudiced by the admission Of
the evidence.
| A witness (Bridges) called by tfe
4 State testified that while he. attended