State v. Lashus

Intoxicating liquors. Former conviction. Record. Law and fact. A record is admissible to show prior conviction which, says, “ Indictment for being a common seller of intoxicating liquors . . . being presented to a jury duly impanneled, they find a verdict of guilty,” etc. The identity of the respondent with the person named in such record is a question of fact for the jury.

On exceptions from superior court. Indictment as a common seller of intoxicating liquors, alleging a former conviction for same offence. To show former conviction the following record was introduced in evidence, omitting formal parts : "/State v. Levi Lashus. Indictment for being a common seller of intoxicating liquors, found at the March term, 1871, when and where the defendant being arraigned pleads not guilty, thereupon, the issue being presented to the jury duly impanneled, they find a verdict of guilty, thence the action was continued to this term for sentence. Sentence, first day of this term. Fine, one hundred dollars and costs. Monday, August 7, 1871, committed for non-payment.” Other facts stated in the opinion. The allegation of a prior conviction was properly set out in the indictment. E. S., c. 27, § § 63, 57, 52; 65 Maine, 234 and 270. Docket entries may be read to a jury when a more extended record has not been made. State v. Heagle, 65 Maine, 468 ; Leathers v. Cooley, 49 Maine, 337; Pierce v. Goodrich, 47 Maine, 173; Longley v. Vose, 27 Maine, 179; Read v. Sutton, 2 Cush. 115 ; Pruden v. Alden, 23 Pick. 184. In this record which was introduced into this case at bar, there is nothing but a mere unauthorized statement of the clerk, that the alleged previous conviction was for being a common seller of intoxicating liquors. We refer to the following authorities bearing upon the validity and effect of such statements by a recording officer, viz. : McGuire v. Sayward, 22 Maine, 230; Owen v. Boyle, 15 Maine, 147 ; Oakes v. Hill, 14 Pick. 442. In the case of State v. Hines, 68 Maine, 202, the county attorney put in the docket entries as in this case, and also the indictment in the former case. By means of said indictment, it was made plain what the previous charge was, but nothing of the sort was done here, and hence, we say all the record introduced proves nothing. We cannot .see how this court can possibly hold otherwise. We contended in our argument to the jury, and we contend now, that this record proves nothing and should have been disregarded by the jury, and that a general verdict of guilty under this indictment was unwarranted by the evidence. We cite the following strong and decisive authorities on this question : State v. Wedgwood, 8 Maine, 75 ; Commonwealth v. Briggs, 5 Pick. 429 ; also see, near close of the opinion in the case of Commonwealth v. Norcross, 9 Mass. 492, the statement of the court as to the necessity of proving the identity of the parties; also, 1 Bishop, Crim. Procedure, § 816.