POMEROY, Justice.
These three appeals followed the entry of a judgment of guilty after a jury trial had on an indictment in which the three defendants were charged with the crime of conspiracy. 17 M.R.S.A. 951.
All three urge as Points of Appeal:
In addition Appellant Cellamare urges that:
Following the return of the indictment and after the Court had ordered Particulars to be filed by the State on Defendants' Motion therefor, the State filed Particulars.
The Defendants contend the indictment is fatally defective and rely on State v. Chick, Me., 263 A.2d 71, 1970, in support of their contention.
A Bill of Particulars, under Rule 7(f) Maine Rules of Criminal Procedure, is available to a defendant who wishes a specification of the acts relied upon by the State.
Particulars have "been a familiar device in our criminal practice from days before the new Rules."
State v. Bull, Me., 249 A.2d 881.
Of course, a Bill of Particulars may not be employed to cure a defective indictment.
Van Liew v. United States, 321 F.2d 664 (CCA 5) (1963).
Examining the indictment, as elucidated by the Bill of Particulars, we find that the three Defendants are charged with having, in the language of the statute (17 M.R.S.A. 951), "conspire(d) and agree(d) together with such intent."
What intent?
"To commit a crime punishable by imprisonment in the State of Maine Prison."
What crime?
"To steal, take and carry away U.S. currency in excess of the value of $100.00."
And thus
"Permanently deprive the Portland Giant, Inc., of Auburn Street, City of Portland, County of Cumberland, State of Maine."
It is constitutionally mandated in all criminal prosecutions the accused shall have a right to demand the nature and cause of the accusation.
Constitution of Maine, Article I, Section 6. Amendment 6, Constitution of the United States.
State v. Chick, Me., 263 A.2d 71 at 75.
Our Court has held in Lumsden v. State, Me., 267 A.2d 649, and in State v. Doran, 99 Me. 329, 59 A. 440, that in situations where the intended crime is not carried to fruition (such as conspiracy or attempt to break and enter where the general intent to steal goods, completes the offense) the averment of such intent without more, i. e., in general terms, is sufficient.
In Chick, supra, there were no Particulars sought or furnished. The indictment charged the Defendants with intending to "cheat the inhabitants of the Town of Jay by obtaining therefrom certain money, goods or property by false pretenses and with intent to defraud."
Certainly that case is distinguishable from the case at Bar.
In Chick one would naturally ask:
What money, goods or property?
The answer to the question can no place be found in the indictment.
One would also logically ask:
By what false pretenses?
The answer no place appears in the indictment.
Not so here.
These Defendants were informed in clear language that the State charged that between September 2, 1968, and October 19, 1968, they met together in the "Crow's Nest," the "Topsail Club," the "apartment of John Wichelms," the "Giant Store," and the "Charter House Motel" and there
There was adequate compliance with the requirements of Rule 7(c) Maine Rules of Criminal Procedure and the requirements of the State and Federal Constitutions.
The Defendants take nothing by this Point of Appeal.
Points 2 and 3 may be considered together.
The Record shows that prior to the time the case was assigned for trial all three Defendants filed Motions for discovery and Inspection under Rule 16(a) Maine Rules of Criminal Procedure.
Among those things the Defendants asked the State to furnish was "the criminal record, if any, of John H. Wichelms named in the indictment as an unindicted co-conspirator."
At the hearing on the Motion the State resisted this request on the ground that such information was not the proper subject of discovery under Rule 16.
The Justice who presided at the hearing on the Motion
At the hearing on the Motion the following colloquy took place between Court and counsel for one of the Defendants:
16 M.R.S.A. 56 makes this provision:
It is to be noted the word "may" is used in the statute. It is unnecessary to reach the question whether or not the statute vests discretion in the Presiding Justice as to whether convictions may be shown in a particular case or to limit the type of convictions which may be presented beyond the limitations found in our statute.
Thus, under our statute, evidence that Wichelms had been convicted of a felony, any larceny, or any other crime involving moral turpitude was admissible for impeachment purposes.
A felony conviction had in another State may be shown. Lacey v. People,
At the trial, while Wichelms was under cross-examination, he was asked the question:
At this point the Court interrupted and would not permit the witness to answer. Counsel for the Defendants objected to the Court's ruling and a conference took place in chambers.
During the course of considerable colloquy the Court observed:
"* * * I cannot permit you to ask a question as it relates to a conviction in another jurisdiction where the offense has been established neither to have been a felony, nor a crime involving moral turpitude, and I don't equate the term `malicious' with moral turpitude. Do you have any proof, are you in a position to establish to the Court that the offense which you charge this witness was convicted of was in fact either a felony or an offense involving moral turpitude ? If you do have such proof, obviously I am going to withdraw my ruling.
COUNSEL: We have been stymied completely by the State in regard to getting a record of this gentleman. We filed a motion for discovery asking for a criminal record. The State was in a perfect position to give it to us. They have refused to give it to us. Consequently they have made it difficult for us to get this particular evidence.
THE COURT: I am not getting involved in arguing motions which have been argued and ruled upon by another Judge of this Court. That was ruled upon and I don't propose to go into it. You are in a position to furnish this Court with citations with reference to a statute which you contend this man now was convicted of, and I am asking you whether or not you can establish to the Court's satisfaction this conviction represents a conviction of a felony or of an offense involving moral turpitude?
COUNSEL: My objection, I didn't have a chance to state the other grounds, I would like that first question stricken too because, as I understand these questions, you have to be asked `Have you ever been convicted of a felony or have you ever been convicted of murder,' and he answered in the affirmative. That is —
THE COURT : I am inclined to agree with you that the proper way is exactly the way you have indicated. However, the question was asked. There was no objection. I grant you, I think I may have the responsibility to enter an objection myself but the form of the question was such it seemed obvious to me, and I assumed you did not object because it was obvious to you, that the offense with which the question dealt was that of a felony. It was almost as though he had asked the witness `Have you ever been convicted of murder,' and he answered `Yes.' I suppose, technically, you should ask him, `Have you ever been convicted of a felony,' and he said, `Yes,' and you say, `Were you the same individual convicted of the offense of murder?'
"Your objection's well taken and I will strike from the record and tell the jury to disregard, if you can establish to me the first answer was to a conviction not a felony or an offense involving moral turpitude although I will agree with you the question wasn't properly posed in the first instance.
"On the other hand, you did not object. Had you objected, I would have sustained it on the basis the form was not proper.
COUNSEL: I was untimely.
"The answer to the first question stands and the jury will be instructed to consider the matter of impeachment and that is all.
"As far as the second question is concerned, I am excluding the question because the question was not put in proper form in the first instance, and secondly, I would not permit the question to be asked again even in the proper form unless counsel can satisfy the Court either that the offense inquired of was a felony or a crime involving moral turpitude and I can only suggest you furnish me with a text of the law that describes and defines the crime so that we can make such a determination."
The source of the problem about which the Appellants complain is apparently the ruling of the Justice who heard the Motion for Discovery under Rule 16. While the Court's order is based upon his assumption that criminal records "are public records" and that "counsel can get that information if they wish by other means," the ruling was correct for another reason.
Rule 16, Maine Rules of Criminal Procedure, directs the Court to "order the prosecuting attorney to permit the defendant to inspect and copy or photograph designated books, papers, documents, or tangible objects, which are within the possession, custody, or control of the state, including written or recorded statements or confessions made by the defendant or a codefendant, written or recorded statements of witnesses, and the results or reports of physical examinations and scientific tests, experiments, and comparisons."
Here there was no showing, the requested criminal records were "within the possession, custody or control of the State."
When one seeks to impeach the credibility of a witness by bringing the fact of conviction for a felony, or any larceny or any crime involving moral turpitude, to the attention of the jury on cross-examination, the better practice is for such person to be armed with an appropriate record of the court in which the conviction took place. Only thus can he be certain the conviction about which inquiry is made is accurately described. The examination must be conducted in good faith and the questioner should be prepared to establish the fact of conviction by documentary evidence, in the event a negative answer is received to his question.
A proper way to ask the question is : "Are you the same * * * who was convicted of the crime of * * * in the Superior Court for * * * County on * * *?"
In order to avoid any possible prejudice from asking the question when the crime may not be one authorized by statute for use to attack credibility, we recommend the question should first be presented to the Presiding Justice in the absence of the jury, to give him opportunity to rule that the crime involved is or is not, (a) a felony, (b) any larceny, or (c) any crime involving moral turpitude.
The questioner is not bound by the witness' answer if it be in the negative but may introduce an appropriate court record to rebut the negative answer received on examination.
Not only should the examiner be prepared to present the appropriate court record but he should also be prepared to establish that the identity of the witness is the same as the person to whom the court record refers.
State v. Mottram, 155 Me. 394, 156 A.2d 383.
Thus, the question asked was in proper form.
If there was basis for exclusion it was that the crime was not a felony, or a crime involving moral turpitude.
Title 16 M.R.S.A. 402 provides:
Section 403 of this Title provides:
Thus the Court was acting in accordance with the statute when he said to counsel:
In Strout v. Burgess, 144 Me. 263, 68 A.2d 241 at 250, the Court said:
If counsel had brought c. 266 sec. 127, Ann.Laws of Massachusetts to the Court's attention, he would have discovered the crime to be either a misdemeanor or a felony, depending upon whether or not the value of the property destroyed or injured was alleged to exceed $15.00.
There is nothing in the record before us by which we can determine whether the crime described in the question was
Appellant Cellamare complains that the Court erred in reading the jury excerpts from Commonwealth v. Tuey, 8 Cush. 1.
The record discloses that this instruction was given to the jury at 4:40 o'clock p. m. after they had been deliberating since 11:45 o'clock a. m.
The record further discloses that the jury did not return its verdict until 10:03 o'clock p. m., over five hours later.
The question as to whether the "8th Cushing" charge, or the "Allen" charge, is coercive becomes academic because it is clear from the record that it had no such effect in this case.
Viewing the record as a whole, we are satisfied the Defendants received a fair trial and the proceedings were free from error.
The entry must be,
Appeals denied.
APPENDIX A
INDICTMENT
That Frank J. Toppi of Portland, Philip B. Shaw of North Windham, and Dennis J. Cellamare of North Gorham, all of the County of Cumberland, State of Maine, on September 2, 1968, and continuously thereafter, up to and including October 19, 1968, at Portland, County of Cumberland, State of Maine, did conspire and agree together and with John H. Wichelms, who is named herein as an unindicted co-conspirator but not as a defendant, feloniously with malicious intent, wrongfully and wickedly, to commit a crime punishable by imprisonment in the State of Maine Prison, to wit: did then and there illegally conspire and agree together with such intent, to permanently deprive the Portland Giant Inc., of Auburn Street, City of Portland, County of Cumberland, State of Maine, and steal, take and carry away, United States currency in excess of the value of $100.00, in violation of 17 M.R.S.A. section 2101.
APPENDIX B
PARTICULARS
1. The acts and conduct of the above named indicted co-conspirators and the unindicted co-conspirator, John Wichelm, which, in part, form the basis of the alleged conspiracy transpired and occurred at the Crow's Nest, Middle Street, Portland, Maine, the Topsail Club, Fore Street, Portland, Maine, the apartment of John Wichelm on Casco Street, Portland, Maine, the Giant Store on Auburn Street, Portland,
2. In furtherance of the conspiracy, the defendants undertook to determine the physical layout and conditions of Portland Giant, Inc., Auburn Street, City of Portland, by visual observation and inspection and other means, arranged to have United States currency in excess of the value of one hundred dollars ($100) the property of Portland Giant, Inc., of Auburn Street, City of Portland, placed in a location apart from the safe and in a position calculated to preclude interference of any alarm system, arrange to have a person concealed within the premises of Portland Giant, Inc., City of Portland, in order to effect the larceny, arrange for the transportation and flight of the participants in the larceny from the premises of Portland Giant, Inc., on Auburn Street, City of Portland, State of Maine.
FootNotes
In Pennsylvania, by statute, a prior conviction is inadmissible against a criminal defendant to impeach his testimony. See : Commonwealth v. James, 433 Pa. 508, 253 A.2d 97 (1969).
In Vermont only prior convictions involving moral turpitude occurring within 15 years may be used for impeachment purposes. In re Huard, 125 Vt. 189, 212 A.2d 640 (1965).
The Texas rule limits convictions which may be shown to affect credibility to those which are not remote. Taylor v. State, 163 Tex.Cr.R. 42, 288 S.W.2d 516. Contrast this with State v. Farmer, 84 Me. 436, 24 A. 985 (1892), in which a conviction had 27 years prior was held admissible.
In Gordon v. United States, 127 U.S. App.D.C. 343, 383 F.2d 936, that Court held:
In State v. White, Me., 217 A.2d 212, these words are found : "If the prosecutor in his cross-examination to credibility had known that the respondent had never been convicted of sodomy or of `being a moral degenerate,' (if such a crime is recognized in any jurisdiction) his conduct would have been reprehensible. But such we are fully satisfied is not the situation before us. The inquiries were put by the prosecutor not by wrongful design but without sufficient basis in fact."
Furthermore, a Defendant had been permitted to ask the witness concerning his conviction for the offense of assault with a dangerous weapon and had received an affirmative answer.
The jury was thus informed the witness was not "lily white." The witness was a co-conspirator and the Court properly instructed the jury his testimony should be accepted with caution.
Comment
User Comments