Berger v. State
| Decision Date | 08 October 1951 |
| Citation | 147 Me. 111,83 A.2d 571 |
| Parties | BERGER v. STATE. |
| Court | Maine Supreme Court |
Christopher S. Roberts, Rockland, for plaintiff.
Alexander A. LaFleur, Atty. Gen., William H. Niehoff, Asst. Atty. Gen., Daniel C. McDonald, County Atty., Portland, for State.
Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.
This is a writ of error that comes to the Law Court from Knox County on report. The evidence consists of the Superior Court record of the original case in Cumberland County.
This record shows that at the May term of the Superior Court for Cumberland County, 1951, William Berger, this plaintiff in error, was indicted with four others, for a conspiracy. The indictment alleged 'feloniously did combine, conspire, and agree together, with fraudulent intent wrongfully and wickedly to do a certain illegal act injurious to the public morals, to wit: did then and there conspire and agree together with said intent, wrongfully and wickedly to engage in gambling by then and there agreeing, with said intent, to gamble and bet on horse races.'
The respondents, including this plaintiff in error, entered a plea of guilty to this indictment, and each was sentenced to not less than one and not more than two years in the State Prison at Thomaston in Knox County. After notice on this writ of error by a justice of the Supreme Judicial Court, a hearing was held thereon in Knox County. Revised Statutes 1944, Chapter 116, Section 12. The case, by agreement of counsel and by order of Court, was reported to the Law Court for determination, under the provisions of Revised Statutes 1944, Chapter 91, Section 14.
A writ of error is based on the record facts alone, and lies for defects evident upon the face of the record. It is a writ of right. Nissenbaum v. State, 135 Me. 393, 197 A. 915; Ex parte Smith, Petitioner, 142 Me. 1, 45 A.2d 438. Even after a plea of guilty the person convicted may have the record reviewed under a writ of error. Ex parte Mullen, 146 Me. 191, 79 A.2d 173.
A defendant has a constitutional right to know the nature and the cause of the accusation from and by the record itself. The facts must be stated with certainty. The description of the criminal offense charged in the indictment must be full and complete. Every fact or circumstance which is necessary for a prima facie case must be stated. The indictment must charge a crime either under the statute or at common law. An indictment should charge a statutory offense in the words of the statute or in equivalent language. If no crime is charged, no lawful sentence can be imposed. Smith v. State, 147 Me. ----, 75 A.2d 538.
The principal assignment of error in this case is that no crime was alleged in the indictment because the indictment 'sets forth no conspiracy as defined in Revised Statutes 1944, Chapter 117, Section 25.'
Section 3 of Chapter 126 of the Revised Statutes 1944, provides that 'Whoever gambles, or bets on any person gambling, shall be punished * * *,' and Section 25 of Chapter 117 of the Revised Statutes 1944, relied on by the State, is as follows: 'If two or more persons conspire and agree together, with the fraudulent or malicious intent wrongfully and wickedly to injure the person, character, business, or property of another; or for one or more of them to sell intoxicating liquor in this state in violation of law to one or more of the others; or to do any illegal act injurious to the public trade, health, morals, police, or administration of public justice; or to commit a crime punishable by imprisonment in the state prison, they are guilty of a conspiracy, and every such offender, and every person convicted of a conspiracy at common law, shall be punished by a fine of not more than $1,000, or by imprisonment for not more than 10 years.'
The indictment under consideration alleges that this plaintiff in error, with four others, 'did combine, conspire and agree together to do a certain illegal act injurious to the public morals,' * * * 'to wit' * * * 'to gamble and bet on horse races.' What is or is not injurious to the public morals involves many considerations, and occasionally varies with time and changing conditions. It may depend on the opinion of a majority of good citizens. State v. Jenness, 143 Me. 380, 62 A.2d 867. 'The common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries.' State v. Pooler, 141 Me. 274, 280, 43 A.2d 353, 355. At common law, bets were legal under some conditions. 27 Corpus Juris, 1046, 38 C.J.S., Gaming, § 3. The State of Maine recognized this, and early passed a statute against 'gaming.' Statutes 1821, Chapter 18. Horse racing was decided to be a 'game' within its terms. Ellis v. Beale, 18 Me. 337. However, the State now authorizes, permits, and approves of betting on horse...
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...even after a plea of guilty or nolo contendere to the charge, such as to test the sufficiency of an indictment. See, Berger v. State, 1951, 147 Me. 111, 83 A.2d 571; Ex parte Mullen, 1951, 146 Me. 191, 79 A.2d 173. The same would be true, if the attack be directed at the sentence upon a cla......
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