Duncan v. State

• Decision Date: 19 July 1962
• Citation: 158 Me. 265,183 A.2d 209
• Parties: John D. DUNCAN, Petitioner for Writ of Error, v. STATE of Maine.
• Court: Maine Supreme Court

Page 209

183 A.2d 209

158 Me. 265

John D. DUNCAN, Petitioner for Writ of Error, v. STATE of Maine.

Supreme Judicial Court of Maine.

July 19, 1962.

Louis Scolnik, Lewiston, for petitioner

Richard A. Foley, Augusta, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN and SIDDALL, JJ.

WILLIAMSON, Chief Justice.

This case is before us on exceptions to the denial of a writ of error. At the October 1956 Term of Superior Court, Knox County, the petitioner was sentenced to not less than eight nor more than sixteen years in the Maine State Prison for forcibly attempting to escape from the state prison under R.S. c. 27, § 42. The errors asserted by the petitioner appear below.

The charging portion of the indictment on which the petitioner, or plaintiff in error, was tried and found guilty is as follows:

'* * * that John Douglas Duncan of Portland, Maine, commorant of Thomaston in the County of Knox and State of Maine, on the 29th day of July, A. D. 1956, at Thomaston, feloniously did attempt to commit a criminal offense, to wit, while undergoing lawful imprisonment in the Maine State Prison, in pursuance of the sentence of Francis W. Sullivan, Justice of the Cumberland County Superior Court at its September Term A. D. 1955, for the offense of breaking, entry and larceny in the night time, for a term of not less than two years nor more than four years; whereupon he, the said John Douglas Duncan, did then and there wilfully, unlawfully and feloniously from and out of said Maine State Prison attempt to escape and go at large, and did then and there do a certain act toward the commission of said offense by then and there throwing at the old vehicle entrance guard post sundry rocks and glass jars which had cloth rags inserted through the covers and were filled with inflammable material and ignited, with intent to set fire to said guard post and to escape over the wall with the use of a ladder, but failed in the execution of said offense.'

The pertinent statutes are:

'Sec. 42. Convict assaulting officers; escape; prosecution.--If a convict, sentenced to the state prison for a limited term of years, assaults any officer or other person employed in the government thereof, or breaks or escapes therefrom, or forcibly attempts to do so, he may, at the discretion of the court, be punished by confinement to hard labor for any term of years, to commence after the completion of his former sentence. The warden shall certify the fact of a violation of the foregoing provisions to the county attorney for the county of Knox, who shall prosecute such convict therefor.' (R.S. c. 27, § 42, as amended by Laws 1955, c. 309. An amendment in Laws 1959, c. 242, § 6, is not here material.)

'Sec. 4. Attempt with overt act to commit offense.--Whoever attempts to commit an offense and does anything towards it, but fails or is interrupted or is prevented in its execution, where no punishment is expressly provided for such attempt, shall, if the offense thus attempted is punishable with imprisonment for life, be imprisoned for not less than 1 nor more than 10 years; and in all other cases he shall receive the same kind of punishment that might have been inflicted if the offense attempted had been committed, but not exceeding 1/2 thereof.' (R.S. c. 145, § 4.)

'Sec. 2. General penalty.--When no punishment is provided by statute, a person convicted of an offense shall be punished by a fine of not more than $500 or by imprisonment for less than 1 year.' (R.S. c. 149, § 2.)

First--The petitioner contends that the escape statute R.S. c. 27, § 42, supra, is void on the ground that the penalty stated is indefinite. The point is not expressly stated in the bill of exceptions. The attack, however, goes to the jurisdiction of the Court, and thus is proper matter for consideration at any stage of the case.

It is argued that the Court is left, under the statute, with discretion to punish within limits or not at all. In other words, the petitioner says that the statute provides a penalty only at the will of the Court.

With this view we do not agree.

'It is a well recognized principle of statutory construction that penal statutes are to be construed strictly, yet the intention of the legislature is to govern and they are not to be construed so strictly as to defeat the intention of the legislature. State v. J. P. Bass Pub. Co., 104 Me. 288, 71 A. 894, 20 L.R.A.,N.S., 495; State v. Cavalluzzi, 113 Me. 41, 92 A. 937.' Smith, Petr. v. State of Maine, 145 Me. 313, 326, 75 A.2d 538, 544.

Section 42 comes to us from the days when solitary confinement at the hands of the Court was a lawful punishment. See Laws 1824, c. 282, §§ 12 and 13.

R.S.1857, c. 140, § 32 reads:

'If any convict, sentenced to the state prison for life, assaults any officer or other person employed in the government thereof, or breaks or escapes therefrom, or forcibly attempts so to do, he may be punished by solitary imprisonment in the state prison not more than one year, and be afterwards held in custody on his former sentence; but if such offence is committed by a convict sentenced to the state prison for a limited term of years, he may be punished by solitary confinement in the state prison not more than three months, to precede the fulfillment of any former sentence, and, at the discretion of the court, may be further punished by confinement to hard labor for a limited period or during life, to commence after his solitary confinement, or the completion of his former sentence.'

The Legislature in 1872 abolished solitary confinement except for prison discipline or to use the words of the present statute 'except as a prison discipline for the government of the convicts.' Laws 1872, c. 64; R.S. c. 27, § 20.

In State v. Haynes, 74 Me. 161 (1882), the provisions relating to punishment for solitary confinement were held void, and in the next revision (R.S.1883, c. 140, § 36) the reference to such punishment was stricken from the statute.

The phrase 'at the discretion of the court' on which the petitioner relies heavily, has no significance as we read the statute. The Court has so decided recently in an analogous situation.

In Green v. Robbins, 158 Me. 9, 176 A.2d 743, the statute provided for the transfer of escapees from reformatory to the state prison 'where he shall serve the remainder of the term for which he might otherwise be held at said reformatory, or at the discretion of the court he may be punished by imprisonment in the state prison for any term of years.' R.S. c. 27, § 73.

The Court, in pointing out that an earlier statute called for additional punishment in the reformatory or at the discretion of the Court for 'any term of years' said, at p. 12, 176 A.2d at p. 745: 'We are satisfied that the retention in Sec. 73 of the phrase 'or at the discretion of the court' was merely the result of inartistic draftsmanship and no significance should be attached to it.' Again on p. 13, 176 A.2d on p. 745: 'In the latter event (a criminal prosecution) the inmate upon conviction might be sentenced by the court to a term in the state prison.'

Striking the phrase 'at the discretion of the court', we have left that 'he may * * * be punished by confinement to hard labor for any term of years * * *.' The words, 'may be punished' in our view have precisely the same meaning in the instant statute that we would give to the more usual phrase 'shall be punished.' Green v. Robbins, supra.

Common sense tells us that the Legislature after the repeal of the provision for solitary confinement intended that the Court should punish one who forcibly attempted to escape from state prison, or who otherwise violated section 42, within the limits 'of any term of years.' The Legislature did not act idly. The language is sufficient to give effect to the intention. The statute is not void for indefiniteness in the penalty. The petitioner gains nothing from the first objection.

Second--The second ground of objection is that the indictment under section 42 is fatally defective from the failure to charge in legally sufficient language: (1) that the respondent was a convict lawfully committed; (2) an essential overt act; (3) a forcible attempt. A fourth objection is that the indictment does not charge an offense under the general attempt statute. (R.S. c. 145, § 4, supra.)

The governing legal principles are well established. The difficulty lies in their application. In Smith, Petr., supra, 145 Me. at p. 324, 75 A.2d at p. 543, an escape case, we quoted with approval the following:

'As said in State v. Lynch, 88 Me. 195, at pages 196-197, 33 A. 978: 'It is also necessary that the indictment should employ 'so many of the substantial words of the statute as will enable the court to see on what one it is framed; and, beyond this, it must use all the other words which are essential to a complete description of the offense; (emphasis ours) or, if the pleader chooses, words which are their equivalents in meaning; or, if again he chooses, words which are more than their equivalents, provided they include the full significations of the statutory words, not otherwise.' 1 Bish.Cr.Proc. § 612.

"In State v. Hussey, 60 Me. 410, it is said: 'An indictment should charge an offense in the words of the statute, or in language equivalent thereto.' In that case the language used was not equivalent to the statutory words, nor did it have a broader meaning, including the significations of the words of the statute.

"We think it is sufficient if the words used in the indictment are more than the equivalent of the words of the statute, 'provided they include the full significations of the statutory words."'

The principles are fully discussed in State v. Couture, 156 Me. 231, 237 et seq., 163 A.2d 646. See also State v. Lashus, 79 Me. 541, 11 A. 604; State v. Beckwith, 135 Me. 423, 198 A. 739; State v. Doran, 99 Me. 329, 59 A. 440; State v. Dumais, 137 Me. 95, 15 A.2d 289; State v. Michaud, 150 Me. 479, 482,...