Biaggio Malvarosa was indicted for receiv-t ing stolen goods. Verdict guilty. BOYCE and RICE, JJ., sitting. P. Warren Green, Deputy Atty. Gen., for [1] The statute of this state, under which this indictment is found, provides: "Whoever shall buy, receive, or conceal, any money, goods, or other thing being the subject of larceny, which shall have been stolen. or taken by robbery, knowing the same to have been stolen or taken by robbery, shall be deemed Philip L. Garrett, of Wilmington, for ac guilty of a felony." Rev. Code, 1915, § 4741. the State. cused. reasonable doubt. [2, 3] Knowledge that the goods were stolen may come from declarations made at the time or from circumstances surrounding the have ordinary intelligence, and you may contransaction. The defendant is presumed to sider the circumstances under which the It is necessary for the state to satisfy you The accused, a licensed junk dealer in the city of Wilmington, was charged with receiv. by the evidence beyond a reasonable doubt ing, on the 3d day of October, 1918, two box- that the shells were stolen, that they were es of gun shells, the property of the Capelle the property of the Capelle Hardware ConHardware Company, of Wilmington, knowing pany, and that when the defendant bought the same to have been stolen. An employé or received them he knew that the goods were of the Capelle Hardware Company placed stolen. These are all material elements of the cartons or boxes containing the shells on the crime and all must be proved beyond a a shelf near the King street entrance of their place of business, and, missing them about a half hour later, traced them to the store of the accused, where he identified them as the property of the Capelle Hardware Company by means of certain private marks upon certain of the boxes; the original package con- shells were bought as affecting the knowledge taining the cartons being found upon the floor of the place of business of the accused of the defendant, whether the person offering floor of the place of business of the accused them to the defendant, for sale, came by back of a counter and part of its contents them to the defendant, for sale, came by them honestly or otherwise. still remaining in the original case and some having been placed upon a shelf with other similar goods belonging to the accused. It was shown by the state that a colored man named Anderson, who was convicted of stealing the shells, having first arranged with the accused to purchase the shells, subsequently delivered them to the latter's place of business by means of a dump wagon belonging to the Charles Warner Company, and received for the 1,000 shells delivered $7.50, although the market value of the same was $20. It was further proved that although under the statute of Delaware junk dealers are required to enter in a book an accurate description of all articles purchased and the name and address of the seller, yet no such record was made by the accused of the shells purchased from Anderson, and no questions were asked of Anderson by the accused as to how he came into possession of the goods. The state requested the court to charge as in the case of State v. Freedman, 3 Pennewill, 403, 53 Atl. 356. Counsel for the accused requested the usual charge as to reasonable doubt. RICE, J. (charging the jury). Biaggio Malvarosa, the accused, is indicated for receiving stolen goods. The indictment contains three counts. The first charges that the accused feloniously did buy 1,000 shells, knowing the same to have been stolen; the second, that he feloniously did receive the same; the third, that he feloniously did conceal the 1,000 shells, knowing them to have been stolen. [4] There is a statute of this state with respect to pawnbrokers and their purchases had a license as a junk dealer at the time of or pawns. It is admitted that the defendant this alleged offence. The statute provides that "Every person, corporation or firm conducting the business of a pawnbroker or junk dealer shall keep a book or books in which shall each loan or purchase an accurate account and be fairly written in English at the time of description of the goods, articles or things pawned, pledged or purchased, the amount of money loaned thereon or the amount of money paid therefor, the time of pledging or purchasing the same and the rate of interest to be paid on such loan, together with the description of the person pawning or pledging or selling such goods, articles or things, including the color of his complexion, color of eyes and hair and his or her stature and general appearance. *" Section 1200, Rev. Code 1915. Under the provisions of this law, it was the duty of the accused in this case, if he bought second-hand goods, to comply with the law by making proper entries in his book. If he failed to make entries as required by the statute at the time of the purchase of secondhand goods, then that is a circumstance to be considered by you in determining whether the defendant innocently or otherwise received the goods alleged to have been stolen. [5] Mere possession of stolen goods standing alone does not establish such knowledge or guilt, but it is a circumstance to be considered with all the evidence in the case. Verdict guilty. (118 Me. 500) (108 A.) (118 Me. 303) ROBERTS, Collector, v. SMALL. RANDALL v. PATCH. (Supreme Judicial Court of Maine. Nov. 13, (Supreme Judicial Court of Maine. 1919.) 1919.) 649-AFFIRMANCE OF DECISION 1. CONSTITUTIONAL LAW TAXATION IN ACTION TO ENFORCE COLLECTION. In an action to enforce collection of taxes on real estate, the trial justice having found for the collector against defendant and the property attached that the assessors were legally elected and sworn, that the tax against defendant was legally assessed, and that the real estate was definitely described, the decision for plaintiff must be affirmed, and defendant's exceptions overruled, where the records show that the annual meeting of the town was legally called and held, that the assessors were chosen by ballot and sworn by a justice of the peace, etc., and that no notice of change of ownership or occupancy had been given in accordance with Rev. St. c. 10, § 25. Exceptions from Supreme Judicial Court, Waldo County, at Law. Action by O. C. Roberts, collector, against C. E. Small, resulting in decision for plaintiff, and defendant excepts. Exceptions overruled. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, and DEASY, JJ. F. W. Brown, Jr., of Belfast, for plaintiff. Arthur Ritchie, of Belfast, for defendant. PER CURIAM. Action to enforce collec tion of taxes assessed upon real estate, and to enforce a lien upon said property, to secure payment of such tax, heard by a single justice without jury, and is before this court upon defendant's exceptions, which are four in number, viz.: (1) The justice found for the plaintiff against the defendant and the property attached. (2) That the assessors were legally elected and sworn. (3) That the tax against the defendant was legally assessed. (4) That the real estate was definitely de scribed. The justice who heard the case having found in the affirmative upon these propositions, it is only necessary to point to the record which shows that the annual meeting of the town was legally called and holden; that the assessors were chosen by ballot and sworn by a justice of the peace; that the real estate was properly described; that the real estate had for several years been taxed to the defendant, and the taxes paid by him; that no notice of change of ownership or occupancy had been given in accordance with the provisions of R. S. c. 10, § 25. Accordingly the mandate must be: Nov. 13, 320-DUE PROCESS; DESTRUCTION OF ABANDONED ANIMALS. Rev. St. c. 126, § 59, authorizing officer of Society for Prevention of Cruelty to Animals to destroy forthwith any animal found abandoned or not properly cared for, is unconstitutional, in that it deprived one of property without "due process of the law" (Const. U. S. Amend. 14), and is in contravention of "the law of the land" (Const. Me. art. 1, § 6). 2. CONSTITUTIONAL LAW 251-DUE PRO CESS; NECESSITY OF HEARING. Notice and opportunity for hearing are of the essence of due process of law. 3. CONSTITUTIONAL LAW 251-DUE PROCESS; HEARING BEFORE JUDICIAL TRIBUNAL. A hearing before a judicial tribunal is not essential to due process of law, but there must be notice and a reasonable opportunity for a hearing before some tribunal. 4. CONSTITUTIONAL LAW 251-DUE PROCESS; NECESSITY OF NOTICE AND HEARING. A statute which purports to authorize procedure depriving an owner of his property, without opportunity for hearing and without notice, violates both the federal and state Constitutions. 5. CONSTITUTIONAL LAW 278(1)-DUE PROCESS; NOTICE AND HEARING. Where plaintiff claims that his horse, sought to be killed by the agent of Society for Prevention of Cruelty to Animals is not past recovery and that it has value, to conclusively determine that question against plaintiff without hearing would be to nullify the constitutional guaranty of due process. 6. CONSTITUTIONAL LAW 45, 70(3) — VA LIDITY OF STATUTE; POWER AND DUTY OF COURT. A court cannot declare a law to be void because unnecessary or inexpedient; but it may be its duty to pronounce invalid an act which violates an express mandate of the Constitution, though the act be expedient, and has been de termined by the Legislature to be necessary. 7. ANIMALS 38-POLICE POWER; DESTRUC TION OF ABANDONED ANIMALS. Rev. St. c. 126, § 59, authorizing an officer of Society for Prevention of Cruelty to Animals to destroy forthwith any animal abandoned or not properly cared for, is not a valid exercise of the police power, since it cannot be justified as an urgent necessity. Report from Supreme Judicial Court, York County, at Law. Trover by Harry Randall against Herbert C. Patch. On report upon an agreed statement of facts, with certain stipulations. Action to stand for trial. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 A.-7 Argued before CORNISH, C. J., and HAN-hearing. For want of such provisions in its SON, PHILBROOK, DÜNN, MORRILL, and original form (Acts 1883, c. 183, § 13) it was DEASY, JJ. This section, when enacted as section 12 of chapter 183, Public Laws of 1883, related to abandoned animals only; the language being, "any animal found abandoned and not properly cared for." By chapter 70 of the Public Laws of 1905 the word "and" was changed to "or." As thus amended, and otherwise by the same act slightly altered, it became section 59 as above quoted. Neither in its original or amended form does it provide for compensation for, opportunity for hearing by, or notice to the owner. The plaintiff claims that he has been deprived of his property without "due process of law" (Const. U. S. Amend. 14) and in contravention of "the law of the land" (Const. Me. art. 1, § 6). The quoted phrases are identical in meaning. State v. Knight, 43 Me. 122; Bennett v. Davis, 90 Me. 105, 37 Atl. 864. [2] Notice and opportunity for hearing are of the essence of due process of law. Bennett v. Davis, supra; Rusk v. Thompson, 170 Mo. App. 76, 156 S. W. 64; Smith v. State Board, 140 Iowa, 66, 117 N. W. 1117. [3] A hearing before a judicial tribunal is not essential, but there must be notice and a reasonable opportunity for a hearing before some tribunal. Bennett v. Davis, supra ; People v. Apfelbaum, 251 Ill. 18, 95 N. E. 995. [4] An act that purports to authorize procedure depriving an owner of his property without opportunity for hearing and without notice violates both the federal and state Constitutions. Section 60, chapter 126, Revised Statutes, in its present form, as amended in 1893 (Laws held unconstitutional by King v. Hayes, 80 Me. 206, 13 Atl. 882. See, to same effect, Loesch v. Koehler, 144 Ind. 278, 41 N. E. 326, 43 N. E. 129, 35 L. R. A. 682; Miller v. Horton, 152 Mass. 544, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850; Brill v. Ohio Humane Society, 4 Ohio Civ. Ct. R. 358; Sahr v. Scholle, 89 Hun, 42, 35 N. Y. Supp. 97; Goodwin v. Toucey, 71 Conn. 262, 41 Atl. 806; Jenks v. Stump, 41 Colo. 281, 93 Pac. 17, 15 L. R. A. (N. S.) 558, 124 Am. St. Rep. 137, 14 Ann. Cas. 914. [5] But the defendant urges that a horse which has been decided by two reputable persons to be injured or diseased and past recovery for any useful purpose is no longer property. The word "property," he contends, does not include a "wreck of what was once a steed," having no utility and no value. This reasoning, however, begs the question. The plaintiff claims that his animal is not past recovery and that it has value. conclusively determine this question against the plaintiff without notice or hearing would be to nullify the constitutional guaranty. To [6] The defendant argues that the determination of the necessity or expediency of any legal enactment is within the exclusive province of the Legislature. This is true. The court cannot declare a law to be void for the reason that it is unnecessary or inexpedient; but it may be the duty of the court to pronounce invalid an act which violates an express mandate of the Constitution, even if the act is expedient and has been determined by the Legislature to be necessary. [7] Again, the defendant contends that section 59 is a valid exercise of the police power. No court has ever undertaken to define the limits of the police power of the state. New occasions teach new applications of it. It is based upon society's right of self-defense and is coextensive with that right. State v. Starkey, 112 Me. 12, 90 Atl. 431, Ann. Cas. 1917A, 196. Under the police power the use by the owner of many species of private property has been held to be subject to uncompen. sated restriction and regulation. For numerous illustrations see State v. Robb, 100 Me. 186, 60 Atl. 874, 4 Ann. Cas. 275; Opinion of Justices, 103 Me. 506, 69 Atl. 627, 19 L. R. A. (N. S.) 422, 13 Ann. Cas. 745; State v. Starkey, 112 Me. 10, 90 Atl. 431, Ann. Cas. 1917A, 196. In cases of extreme and urgent necessity, as conflagrations (Farmer v. Portland, 63 Me. 47), or epidemics (Seavey v. Preble, 64 Me. 121), it justifies the destruction of property without preliminary notice or hearing, and even without compensation. But section 59 provides for the destruction of property, and not for restrictions upon or regulation of its use, and it cannot (108 A.) If section 59, now as in its original form Mary O'Toole was charged with having in the act of 1883, related to abandoned ani-possession of intoxicating liquor with intent mals merely, our conclusion might be different. unlawfully to sell it. Verdict of guilty, and The destruction by public authority of an she brings exceptions. Exceptions overruled. abandoned animal deprives nobody of property. But the section in its present form does not refer to abandoned animals only. It purports to authorize the defendant to do, without notice or hearing, what the agreed statement says he did, to wit, that he "took the horse from the plaintiff's possession against his objection" and killed it. It thus contravenes an explicit constitutional mandate. Action to stand for trial. (118 Me. 314) STATE V. O'TOOLE. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ. C. L. Beedy and Clement F. Robinson, both of Portland, for the State. H. C. Sullivan, of Portland, for respondent. DUNN, J. The complaint charged against the respondent the possession of intoxicating liquor, at Portland, on November 30, 1918, with intent unlawfully to sell it in this state. Testimony tending to show respondent's possession of the liquor on that date, and that, for 16 years before that time, she continuously had occupied the premises where it was found was introduced by the prosecution. (Supreme Judicial Court of Maine. Nov. 13, Thereupon, in relation to the intent accom 1919.) panying her possession of the liquor, the court against objection, permitted the state 1. CRIMINAL LAW 384-EVIDENCE NOT IN- to offer evidence that, on May 30, 1917, some ADMISSIBLE FOR REMOTENESS. While time affects the weight of evidence, it does not necessarily impair its significance so as to render it inadmissible on objection that acts testified to were too remote. 2. CRIMINAL LAW 371(10)—EVIDENCE OF OTHER OFFENSES; UNLAWFUL POSSESSION OF LIQUOR. In prosecution for having possession of intoxicating liquor with intent to unlawfully sell it, evidence, confined within reasonable limits, of a previous breach of the liquor laws by defendant, was admissible with regard to the unlawfulness of her possession of the liquor in question. 3. CRIMINAL LAW 373-EVIDENCE OF SALES ON OTHER DATES ADMISSIBLE. The offense of having possession of intoxicating liquor with intent to unlawfully sell it being in its nature a continuing one, sales by defendant before, after, and at the time of the alleged keeping might have been shown to the limited extent of shedding light upon intent to sell liquor in question. 4. CRIMINAL LAW 371(10)-INTOXICATING LIQUORS 233(1) EVIDENCE SHOWING INTENT; UNLAWFUL POSSESSION. 18 months before the date alleged in the complaint, persons were seen going in and coming out of the respondent's place; and that, on one day about three months later in the last-named year, she then had intoxicating liquor in her possession. Suitable instruction was given the jury that the evidence was competent only in relation to the intent with which the respondent kept, the particular liquor, for the keeping of which she was being prosecuted. In support of exceptions, respondent strenuously argues that the acts testified to were at times so remote as to be fatal to their admissibility. [1-3] Time in its flight affects the weight of evidence. Still, it does not necessarily impair its significance. Exact limitation within which an act must have had occurrence, in order to give it evidential status, would be difficult of satisfactory definition by an epochal boundary line. Questions of the nature of that here presented involve the principle of separate instances to show a character or habit, or a plan or course of busi ness. The unlawfulness of the possession of the liquor by the respondent, as set out in the complaint, was directly in issue. It not only was an essential ingredient, but of the very essence, of the offense. Evidence, confined within reasonable limits, of a previous breach of the liquor laws by her, was admis In prosecution for having possession of intoxicating liquors, with intent to unlawfully sell it, the discretion of the trial judge was not wrongly exercised in admitting evidence that some 18 months before the date alleged in the complaint persons were seen going in and coming out of defendant's place, and that on one day about three months later defendant had in-sible with regard to the unlawfulness of her toxicating liquor in her possession; the jury being instructed that the evidence was competent only in relation to the intent with which defendant kept the liquor in question. Posssession of the particular liquor. The offense charged being in its nature a continuing one, sales by the respondent before, after, and at the time of the alleged keeping might have been shown to the limited extent of Exceptions from Superior Court, Cumber-shedding light upon an intent to sell the esland County; Lauren M. Sanbourn, Judge. pecial liquor. State v. Plunkett, 64 Me. 538; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes State v. Neagle, 65 Me. 468; State v. Ray-tor of an estate, his habits of life 19 months mond, 24 Conn. 204; State v. Mead's Liquors, before were shown in evidence. Cases cited 46 Conn. 22. Introduction of this kind of by counsel, with periods of time varying from evidence should be carefully guarded. It 3 weeks to 6 months, all go to the principle should come from a time near that in ques- of the general admissibility of the evidence. tion, or be connected therewith by testimony In each, depending on its own facts, the tesshowing the existence of a like condition timony was admitted. through the intervening period. Reception of such evidence is largely for the discretion of the judge presiding at the trial. [4] In the case in hand, it was decided that the offered testimony was not too remote in point of time. Albeit another judge might The acts testified to may or may not have have decided otherwise, we are not privilegbeen strong in probative force. They were ed to say that the discretion of the presidnot very near in point of time. If, previous-ing justice was wrongly exercised. Exceptions overruled. ly, persons went to the respondent's place in such numbers, and under such circumstances as thereby to furnish evidence, in connection with other circumstances, that she then was violating the liquor laws, such fact might tend to prove guilty design as charged in the complaint. Possession by her, at an earlier time, with unlawful purpose, of intoxicating liquor, might reflect her later intent concern (Supreme Judicial Court of Maine. Nov. 13, (118 Me. 307) KELSEY et al. v. IRVING. 1919.) 1. SALES 355(3)-PROOF OF DELIVERY. An action on account annexed for specified goods or merchandise does not require proof of delivery to support it, but a sale must be shown. 2. LOGS AND LOGGING 4-LICENSE TO CUT TIMBER. Letter and acceptance, whereby defendant agreed to pay plaintiffs $10 a cord for wood standing and growing on a lot, which defendant desired to use as a piling and sticking ground, held to constitute only a license to cut trees, so that, where defendant did not cut trees, title did not pass and there was no sale to support an action on account annexed. 3. APPEAL AND ERROR IN LOWER COURT. 193(1)-OBJECTION Where the case was fully tried on its merits, and the real issues between parties was submitted, and no evidence offered by either party was objected to by reason of the form of decuntil after verdict rendered, it is too late for delaration, and no claim of variance was set up fendant to take advantage of defects in the declaration which do not affect his substantial rights. ing other liquor. The point made against the 4. APPEAL AND ERROR 209 (2)-OBJECTION NOT RAISED AT NISI PRIUS. Contention that the evidence does not show the cutting of 40 cords of hard wood as claimed in the account must be held waived, where not raised at nisi prius. On Motion from Supreme Judicial Court, Lincoln County. Action by Webster Kelsey and another against W. A. Irving. Verdict for plaintiffs, and the case comes to the Supreme Judicial Court of Maine on motion from verdict. Mo tion overruled. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and |