Martin v. State

• Decision Date: 12 February 1969
• Citation: 249 A.2d 871
• Parties: Jim MARTIN v. STATE of Maine et al.
• Court: Maine Supreme Court

Page 871

249 A.2d 871

Jim MARTIN v. STATE of Maine et al.

Supreme Judicial Court of Maine.

Feb. 12, 1969.

John J. Harvey, Biddeford, for plaintiff.

Warren E. Winslow, Jr., Asst. Atty. Gen., Augusta, for defendants.

Before WILLIAMSON, C. J., and TAPLEY, MARDEN, DUFRESNE, and WEATHERBEE, JJ.

TAPLEY, Justice.

On appeal. This is an appeal from the findings of a single Justice on the petition for issuance of a writ of habeas corpus (14 M.R.S.A., Sec. 5502 et seq.). The issue is whether the information sufficiently charges the crime of breaking, entering and larceny in the nighttime without alleging that the appellant took the property with an intent to deprive the owner of it permanently.

The information was drafted under provisions of 17 M.R.S.A. Sec. 2103. This section reads:

'Whoever, without breaking, commits larceny in the neghttime in a dwelling house or building adjoining and occupied therewith, or breaks and enters any office, bank, shop, store, warehouse, barn, stable, vessel, railroad car of any kind, courthouse, jail, meetinghouse, college, academy or other building for public use or in which valuable things are kept, and commits larceny therein, shall be punished by imprisonment for not more than 15 years; and when the offense is committed in the daytime, by a fine of not more than $1,000 or by imprisonment for not more than 6 years.'

The pertinent portion of the information is couched in the following language:

'THAT James Martin alias Jim Martin, of Portsmouth, New Hampshire in the County of Rockingham and State of New Hampshire, laborer on the seventh (7th) day of September, 1965 at Kittery in the County of York and State of Maine in the nighttime of said day the restaurant of Valle's Steak House, a corporation duly organized and existing under the laws of the State of Maine, a building in which valuable things were then and there kept, then and there situate, feloniously did break and enter and sundry silver, nickel and copper coins, bank bills, U. S. Treasury Notes and certificates, Federal Reserve Notes, of the aggregate value of ($2,647.00) Dollars, current as money in the United States of America a more particular description of which is to your Assistant County Attorney unknown, of the property of said Valle's Steak House, in said restaurant then and there being, then and there in and from said restaurant feloniously did steal, take and carry away, against the peace of said State and contrary to the form of the statute in such case made and provided.'

Counsel for the appellant contends that the complaint should contain the allegation that the appellant took the property with the intent to deprive the owner of it permanently.

The basic test for use in determining the legal sufficiency of an information or an indictment has often been quoted:

'The test to be applied is whether a respondent of reasonable and normal intelligence, would, by the language of the indictment, be adequately informed of the crime charged and the nature thereof in order to be able to defend and, if convicted, make use of the conviction as a basis of a plea of former jeopardy, should be occasion arise.' State of Maine v. Charette, 159 Me. 124, at 127, 188 A.2d 898, at 900.

There is no subtle or hidden meaning to the word 'larceny.' Its meaning is clear and understandable by any person with reasonable intelligence.

The pertinent portion of the larceny statute, being 17 M.R.S.A. Sec. 2101, reads:

'Whoever steals, takes and carries away, of the property of another, * * * is guilty of larceny; * * *.'

The information charges, in part, that the appellant 'feloniously did break and enter and sundry silver, nickel and copper coins, bank bills, U. S. Treasury Notes and certificates, Federal Reserve Notes, of the aggregate value of ($2,647.00:) Dollars, * * * in said restaurant then and there being, then and there in and from said restaurant feloniously did steal, take and carry away, against the peace of said State and contrary to the form of the statute in such case made and provided.' (Emphasis supplied).

'The indictment alleges that the defendant 'feloniously did steal, take and carry away, against the peace of the state, and contrary to the form of the statute in such case made and provided.' certain described property 'of the goods and chattels of one Charles P. Jordan, Jr.,' &c., and the defendant by his demurrer admits he did so. This is precisely what is forbidden by R.S., c. 120, Sec. 1, the language of which is followed in the indictment. * * * The indictment is alike good at common law and by statute.' State...