State v. Bartley

• Decision Date: 23 January 1899
• Citation: 92 Me. 422,43 A. 19
• Parties: STATE v. BARTLEY.
• Court: Maine Supreme Court

43 A. 19

92 Me. 422

STATE

v. BARTLEY.

Supreme Judicial Court of Maine.

Jan. 23, 1899.

(Official.)

Exceptions from supreme judicial court, Piscataquis county.

This was an indictment against James Bartley, in which he was charged with being a common seller of intoxicating liquors, and also alleging a prior conviction for the same offense. The indictment, following the form prescribed by statute, is as follows:

"State of Maine. Piscataquis—ss.: At the supreme judicial court, begun and holden at Dover, within and for the county of Piscataquis, in said state, on the last Tuesday in February in the year of our Lord 1898.

"The jurors for said state upon their oath present that James Bartley, of Greenville, in said county of Piscataquis, at Greenville aforesaid, in said county of Piscataquis, on the 1st day of October in the year of our Lord 1897, and on divers other days and times between said 1st day of October aforesaid and the day of the finding of this indictment, without lawful authority, license, or permission therefor, was a common seller of intoxicating liquors, against the peace of said state, and contrary to the form of the statute in such case made and provided; and the jurors aforesaid upon their oath aforesaid further present that said James Bartley has been once before convicted as a common seller under the laws for the suppression of drinking houses and tippling shops in said county of Piscataquis. A true bill.

"Elbridge T. Douglass, Foreman.

"Charles W. Hayes, County Attorney."

The defendant demurred to the indictment, but the court overruled the demurrer, and the defendant took exception to this ruling of the court. Exceptions overruled.

Argued before PETERS, C. J., and EMERY, HASKELL, WISWELL, and FOGLER, JJ.

C. W. Hayes, Co. Atty., for the State.

J. B. Peaks and E. C. Smith, for defendant.

WISWELL, J. The indictment against the respondent charged him with being a common seller of intoxicating liquors, and contained what was intended to be an allegation of a former conviction of a violation of the same statute. To this indictment the respondent filed a general demurrer, which was overruled, and the case comes here upon exception to such ruling.

It is not denied that the crime of being a common seller of intoxicating liquors is sufficiently set out in appropriate language, and with all necessary allegations. The demurrer, therefore, was properly overruled. If the averment of a former conviction is insufficient, it would not affect the other allegations of the indictment, which sufficiently set out the main crime. So much of the indictment as relates to the alleged former conviction might be stricken out, and still the crime would be fully charged with all necessary particularity. It may, therefore, if insufficient for the purpose intended, be rejected as surplusage. State v. May berry, 48 Me. 218; State v. Chartrand, 86 Me. 547, 30 Atl. 10; State v. Dorr, 82 Me. 341, 19 Atl. 861.

But the statute prescribes a greater penalty in the case of a second and every subsequent conviction; and it may not be improper to here discuss the question (especially as it is presented in a number of cases now before the court) intended to be raised, as to whether the greater or the lesser offense is charged in this indictment, or, in other words, whether the following is a sufficient allegation of a former conviction for another violation of the same statute: "And the jurors aforesaid, upon their oath aforesaid, further present that said James Bartley has been once before convicted as a common seller under the laws for the suppression of drinking houses and tippling shops in said county of Piscataquis."

However deficient in certainty and in averment this may be, it is precisely the form prescribed by statute (Rev. St. c. 27, § 63); so that the question resolves itself into this: Whether or not the legislature, in prescribing this form, has transcended its constitutional power.

It is well settled in this state that while the legislature may modify and simplify the forms in criminal proceedings, and may authorize the omission of allegations in indictments which do not serve any useful purpose, either by enabling the court to see, without going out of the record, what crime has been committed, if the facts alleged are true, or of apprising the accused of the precise crime with which he is charged, so as to enable him to meet it in his defense, it cannot deprive a person accused of crime of such rights as are essential to his protection, and which have been guarantied to him by the constitution of the state. One of the most important of these rights is that the accusation against him shall be formally, fully, and precisely set forth, so that he may know of what he is accused, and be prepared to meet the exact charge against him. In State v. Learned, 47 Me. 426,...