State vs. Oliver C. Rollins.
Kennebec.
Opinion June 4, 1885.
Indictment. Intoxicating liquors. Gross-examination of witness. Practice. Instructing the jury.
An indictment, which charges that the defendant, at Gardiner, during a time named, “ unlawfully did keep a drinking house and tippling shop, against the peace of the state,” &c. is sufficient.
The extent to which a cross-examination, relating to collateral matters, may be carried, is within the discretion of the presiding justice.
By whom a witness for the government, in a liquor case, was employed to act as a detective, is entirely irrelevant to the issue being tried.
*381It is not error for the presiding justice to recall the jury into court, after they had considered a case submitted to them for sometime, and endeavor to impress upon them the importance of agreeing upon a verdict.
On exceptions from superior court.
Indictment for keeping a drinking house and tippling shop. The respondent seasonably before trial, moved for a bill of particulars. The motion was overruled.
At the trial the state introduced the following evidence : that on or about May 1, 1883, the respondent paid to the United States, the special tax required of retail liquor dealers, for the period extending from May 1, 1883, to April 30, 1884, and that the respondent during the time covered by the indictment, had been proprietor of the Evans House, at Gardiner, Maine, and had run the same during that period. One Edward P. Harrington testified, in substance, that be was a resident of Boston, Mass., and connected with the private detective agency of one T. F. McClaughlin of that city. That in February, 1884, he was employed to come to Gardiner, and by personal purchases to make himself a witness against liquor dealers in that city. That he boarded at the Evans House, and while there made some ten purchases of intoxicating liquors, whiskey, whiskey punch, rum, gin cocktails, &c. That he bought the same of the clerks of the respondent, and drank all the liquor so bought, on the premises of the respondent. That his compensation was five dollars a day and expenses. When asked by the respondent’s counsel to give the name of the person who employed him, the presiding judge excluded the question.
After the jury had taken the case and had been in the jury room for two hours, or thereabouts, the court sent to them a message by the sheriff, inquiring if the jury desired further instructions. The sheriff reported that the jury were unable to agree whether they desired further instructions or not. Thereupon the presiding justice ordered the jury brought into court and further instructed them as follows :
"I simply called you in for the purpose of impressing upon your minds the importance of agreeing, and to give you some observations that I usually incorporate into the first charge, *382which I omitted in this case, adopted from the Supreme Court of Massachusetts.”
After giving the observations as to the importance of agreeing, the judge repeated a portion of his instructions when the case was first committed to the jury.
The jury again retired and soon returned with a verdict of guilty.
W. T. Haines, county attorney for the state,
cited : Wharton, Crim. Law, (7thed.) § § 291, 3156; Oom. v. Giles, 1 Gray, 466; Oom. v. Wood, 4 Gray, 11 ; Gardner v. Gardner, 2 Gray, 434; Harrington v. Harrington, 107 Mass. 329; State v. Gollins, 48 Maine, 217; State v. Oasey, 45 Maine, 435 ; State v. McNally, 34 Maine, 210; State v. Soper, 16 Maine, 293; Nichols v. Munsel, 115 Mass. 567; Oom. v. Snelling, 15 Pick. 321; Nelson v. Dodge, 116 Mass. 367 ; 110 Mass. 70; Kellogg v. French, 15 Gray, 354; Lathrop v. Sharon, 12 Pick. 171; Raymond v. Nye, 5 Met. 151;
Herbert M. Heath, for the defendant.
I am aware that in State v. Gollins, 48 Maine, 217, this form of indictment, though in plain violation of every principle of logic, reason and pleading, has been held sufficient. If it is to stand it should be supplemented by the further decision that under it, respondents shall be entitled, as of right to a bill of particulars, on motion, 3 Wharton, Crim. Law, § 3156. True it has been held that the allowance of bills of particulars is within the discretion of the presiding justice, Oom. v. Wood, 4 Gray, 11. "Yet whenever a bill of particulars is a substitute for special averments in an indictment, error should be entertained.” Wharton, Crim. Law, § 3158.
Counsel contended that the question put to the detective witness, on cross-examination, calling for the name of his employer was admissible. The name of the person might have been material in many ways. We might have shown that he entertained malice towards the defendant, that he had entered into a conspiracy to convict whether guilty or innocent.
By R. S., c. 82, § 86, the presiding justice may, in his discretion, recharge the jury when they return into court and *383announce that they cannot agree. But there was no such announcement here.
Counsel further cited : Com. v. Downing, 4 Gray, 29 ; Sjperes v. Parker, 1 D. & E. 141; Smith v. Moore, 6 Greenl. 278; State v. Cove, 34 N. H. 510; Howe v. Com. 5 Grat. 664; State v. Foster, 3 McCord, 442 ; Morse v. State, 6 Conn. 9 ; Chitty, Crim. Law, 281, 283 and cases; State v. Cotton, 4 Poster, 143 ; 5 B. Monroe, 263.