Davis v. State

• Decision Date: 22 June 1973
• Citation: 306 A.2d 127
• Parties: Donald C. DAVIS v. STATE of Maine.
• Court: Maine Supreme Court

Page 127

306 A.2d 127

Donald C. DAVIS v. STATE of Maine.

Supreme Judicial Court of Maine.

June 22, 1973.

Vafiades, Brountas & Kominsky, by Marvin H. Glazier, Bangor, for plaintiff.

John W. Benoit, Jr., Deputy Atty. Gen., Augusta, for defendant.

Before DUFRESNE, C. J., and WEBBER, POMEROY and WERNICK, JJ.

DUFRESNE, Chief Justice.

The appellant, Donald C. Davis, appeals to the Law Court under 14 M.R.S.A. § 5508 from the unfavorable judgment of a Single Justice which denied him relief from a 1957 conviction of the crime of arson upon plea of guilty to such charge and left standing the ensuing sentence to Maine State Prison for a term of not less than 50 years and not more than 100 years. At the time of the hearing of the post-conviction habeas corpus, the appellant was on parole from said sentence.

Arrested on August 22, 1957 for violation of Section 2, Chapter 131 of the Revised Statutes of Maine, 1954 (now 17 M.R.S.A. § 152), the appellant was taken before the then Lincoln Municipal Court, where he entered a plea of guilty to the charge without the assistance of counsel, a prevalent practice in those days. The Judge made a finding of probable cause and bound the appellant over to the incoming September term of the Penobscot County Superior Court. On August 26, 1957, with the assistance of appointed counsel at the Superior Court level, he waived grand jury indictment under R.S.1954, c. 147, § 33-Public Laws, 1955, Chapter 187-(now Rule 7(b), M.R.Crim.P.) and pleaded guilty to an information which charged the crime of arson in the following pertinent terms:

'That, Donald C. Davis, of Westbrook, in the County of Cumberland and State of Maine, on the fifteenth day of August, A.D.1957, at Lincoln, in the County of Penobscot and State of Maine, in the night time of said day, feloniously, willfully and maliciously did set fire to and thereby burn a certain building erected for public use, to wit: the Odd Fellows Hall building, said building being then and there used as a public motion picture theatre, there situate, against the peace of said State, and contrary to the form of the Statute in such case made and provided.'

Initially, the appellant asserts error on the part of the Justice in the habeas corpus proceeding for not recognizing the fatal insufficiency of the information. We disagree.

He first contends that the charging instrument, the information, does not set forth the crime of arson as defined by R.S.1954, c. 131, § 2, ¹ in that, although it alleges that the 'Odd Fellows Hall building' is a building erected for public use, nevertheless, from the face of the information itself, it obviously appears that the reference building is a private building erected for private purposes which, at the time of the fire, had been converted to a public use, to wit, a public theater. The Justice below so construed the accusation and dismissed the argument with the following statement:

'The Petitioner argues that the Odd Fellows Hall is a building erected for private fraternal meetings. However, the allegation in the complaint (information) is that it was then being used as a public motion picture theater, and the Court need not go beyond the allegation in saying that it was thus erected for public use and was within the meaning of the statute.'

It is a well recognized principle of statutory construction that penal statutes are to be construed strictly and that a criminal offense cannot be created by inference or implication, nor can the effect of a penal statute be extended beyond the plain meaning of the language used. State v. Wallace, 1906, 102 Me. 229, 66 A. 476; State v. LeBlanc, 1916, 115 Me. 142, 98 A. 119; Tuttle Petr. v. State, 1962, 158 Me. 150, 180 A.2d 608. Nevertheless, the overriding controlling rule in the construction of statutes, including penal statutes, is for the courts to ascertain legislative intent and, once determined, to effectuate the same. State v. Gaudin, 1956, 152 Me. 13, 120 A.2d 823. Even though penal laws are to be construed strictly, yet the intention of the Legislature must govern in the construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious will of the Legislature. The intent and object of the Legislature in enacting the law are to be ascertained and given effect if the language be fairly susceptible of such a construction. Such interpretation of the words used will be adopted as shall appear most reasonable and best suited to accomplish the objects of the statute. State v. J. P. Bass Co., 1908, 104 Me. 288, 71 A. 894, 20 L.R.A.,N.S., 495; State v. Holt, 1962, 158 Me. 81, 179 A.2d 298.

The end sought in the arson statute by punishing the willful and malicious nighttime setting afire, and burning of, meetinghouses, courthouses, jails, town houses, colleges, academies or other buildings erected for public use, is to protect public buildings against those peculiar dangers which ordinarily attend public property, but to which dangers buildings in the private sector are not usually subjected.

The comprehensive attempt of the Legislature to deter arson militates against any purported constrictive intendment on the part of the Lawmakers in the use of the phraseology 'erected for public use' which would support the conclusion that the legislation was aimed solely at protecting public use or purpose buildings when originally so designed, constructed and built, and not when such buildings were not so set up from the beginning. The proper course in all cases is to adopt that sense of the words which best harmonizes with the context and promotes in the fullest manner the policy and objects of the Legislature. United States v. Hartwell, 1867, 6 Wall. 385, 18 L.Ed. 830.

In view of the object manifestly sought to be accomplished and the mischief to be remedied by the statute, we believe the Legislature used the word 'erected' in a broad and comprehensive meaning, synonymous with 'set up' or 'used' for public use. It is within the spirit and letter of the statute to bring within its coverage buildings which at the time of the setting of the fire and the burning were devoted to public use. See, Commonwealth v. Horrigan, 1861, Mass., 2 Allen 159.

Secondly, the appellant further contends that the information is fatally inadequate in that, although it alleges the crime to have been committed in the nighttime of August 15, 1957, it omits to indicate the specific hour or exact time when the act of arson took place. This Court has not expressly ruled upon such a contention in the past. The appellant finds support for his position in old treatises on the subject of criminal law which state very distinctly that in indictments of this kind, whether for arson or burglary, the particular hour should be laid. See, 1 Russell 826; 2 East P.C. 513. (But, see common law authorities to the contrary mentioned in State v. Robinson and McClune, 1871, 35 N.J.L. 71, at page 73). The rationale for such a rule is expressed in the dictum which appears in Commonwealth v. Williams, 1849, 56 Mass. (2 Cush.) 582:

'It has been considered proper and necessary, until the statute of 1847, c. 13, and such are the usual precedents, to state some particular hour of the night, in which the burglary was alleged to have been committed. The reason for this seems to have been, that one might with a felonious intent have broken and entered a building, at a time properly called in popular language nighttime, and yet not have committed the crime of burglary; the time in which that offence can be committed being not so far extended as to embrace the night-time, in the ordinary use of that word, but a period when the light of day had so far disappeared, that the face of a person was not discernible by the light of the sun or twilight.'

To the same effect, see State v. G. S., 1802, Vt., 1 Tyler 295, 4 Am.Dec. 724.

This controversy which developed at early common law caused indictments, where nighttime was an element of the crime or a circumstance for enhanced punishment, to specify the hour of the crime as being 'about the hour of twelve o'clock in the night of said day.' See, Shelton v. Commonwealth, 1892, 89 Va. 450, 16 S.E. 355; State v. Bancroft, 1839, 10 N.H. 105; Commonwealth v. Squire, 1840, 42 Mass. (1 Metc.) 258; State v. Seymour, 1853, 36 Me. 225. This was a mere technicality, since the proof could show any other hour during that particular night at which time the crime was committed, provided it was within the common law definition of nighttime.

Maine, at the time of the instant conviction, had no statute of general application defining nighttime when used in statutory provisions relating to crime. This is still true today. However, certain statutes, in respect to some specific criminal conduct, did set up the time period within which it would be considered nighttime: see, R.S.1954, c. 22, §§ 136, 43 (now 29 M.R.S.A. §§ 1071, 1366) display of lights of vehicles; R.S.1954, c. 37, § 54 (now 12 M.R.S.A. § 2651) ice fishing; R.S.1954, c. 37, § 77 (now 12 M.R.S.A. § 2455) night hunting; R.S.1954, c. 37, § 113 (now 12 M.R.S.A. § 2358(7)) hunting raccoons; R.S.1954, c. 61, § 93-circumstances under which liquor law enforcement officers could stop motor vehicles. In the absence of statute, the common law concept of nighttime controls. See, Trull v. Wilson, 1812, 9 Mass. 154.

As stated in 2 Wharton, Criminal Law and Procedure (Anderson) § 431, p. 54:

'In the absence of statute, the determination of night is not the setting and rising of the sun. Instead, it is deemed day although the sun has not yet risen or after it has set, if it is sufficiently light to discern a person's face. That is, visibility by daylight determines the existence of day.'

The Georgia Court, in Bethune v. State, 1873, 48 Ga. 505, at 509, quoted from 1 Bishop on Criminal Law, section 163, as follows:

'The common law now is, and for a long period has been, that those portions of the morning...