State v. Beckwith

Decision Date27 April 1938
Citation198 A. 739
CourtMaine Supreme Court

Report from Superior Court, Penobscot County.

Ferne Beckwith, whose full, true and correct name was unknown to the grand jurors was indicted for soliciting Margaret Barrett to burn a house. The defendant filed a motion to quash the indictment on the ground that the facts alleged in each count were insufficient to constitute an indictable offense. On report from the Superior Court.

Case remanded for trial on the third count of the indictment.


John Quinn, Co. Atty., of Bangor, for the State. Locke, Campbell & Reid, of Augusta, for respondent.

STURGIS, Justice.

At a term of the superior court holden at Bangor in the county of Penobscot on the first Tuesday of January, A.D. 1937, the grand jury returned an indictment charging the respondent, Ferne Beckwith, with soliciting Margaret Barrett to burn a certain house of one Flora Rowe, the same being situated in Newport, Me., on state highway numbered 7, known as or by the name of "Fernwood Inn" and then and there occupied by the respondent. In four counts of the indictment, the character of the respondent's occupancy of "Fernwood Inn" is alleged generally only, neither its nature or extent being set forth. In the third count, it is alleged that the respondent occupied the building as a dwelling house. In no count does it appear by what right or title she had her occupancy.

At the September term, 1937, the respondent filed a motion to quash the indictment on the ground "that the facts alleged therein are, in each count and in all counts, insufficient to constitute an indictable offense," and upon hearing an attempt was made to report the case to the law court for decision. Returned to the trial court for insufficiency of the certificate, it now comes forward with the consent of the parties to the report and the stipulation that "if the indictment fails to allege the commission of an offense, a nolle prosequi shall be entered; otherwise case to stand for trial below."

As the case develops, the learned and extended argument of counsel for the respondent that the indictment does not sufficiently allege an attempt to commit arson 'or statutory burning need not be considered. As the state's attorney admits, the offense charged is solicitation of a felony, an indictable offense at common law regardless of whether the solicitation is of effect or the crime advocated in fact committed. State v. Ames, 64 Me. 386; Rex v. Higgins, 2 East. 5; Commonwealth v. Randolph, 146 Pa. 83, 23 A. 388, 28 Am. St.Rep. 782; State v. Avery, 7 Conn. 266, 18 Am.Dec. 105; State v. Donovan, 28 Del. 40, 5 Boyce 40, 90 A. 220; Commonwealth v. Flagg, 135 Mass. 545; State v. Sullivan, 110 Mo.App. 75, 87, 84 S.W. 105; People v. Bush, 4 Hill, N.Y., 133, 135; State v. Boyd, 86 N.J.L. 75, 79, 91 A. 586; State v. Bowers, 35 S.C. 262, 266, 14 S.E. 488, 15 L.R.A. 199, 28 Am.St.Rep. 847; Rudolph v. State, 128 Wis. 222, 228, 107 N.W. 466, 116 Am.St.Rep. 32; State v. Keyes, 8 Vt. 57, 30 Am.Dec. 450; 2 Bishop's New Crim. Law, § 20; 16 Corpus Juris 117; 1 Bishop's New Crim. Law, 768.

Statutory arson and kindred crimes are made felonies by chapter 130 of the Revised Statutes, as amended by chapter 71, P. L. 1935. Section 1, as amended, defines statutory arson as follows:

"Whoever wilfully and maliciously sets fire to or causes fire to be set to the dwelling-house or any building, occupied in part for dwelling or lodging-house purposes and belonging wholly or in part to himself, his wife or to another, * * * shall be punished by imprisonment for not less than 1 year, nor more than 20 years."

Section 2, as amended, prohibits the willful and malicious setting fire to enumerated public buildings or to any store, shop, office, barn, or stable of the wife of the accused, or of another, within the curtilage of a dwelling house so that such dwelling house is thereby endangered, and if the building is burned in the nighttime the punishment is imprisonment for any term of years, but if the offense is committed in the daytime, or without the curtilage of and without endangering a dwelling house, imprisonment shall be for not less than one year nor more than ten years. Section 3, as amended, reads:

"Whoever wilfully and maliciously burns any building of his wife or of another not mentioned in the preceding section, * * * shall be punished by imprisonment for not less than 1 year, nor more than 10 years."

It is the constitutional right of all persons accused of crime to know without going beyond the record the nature and cause of the accusation and to insist that the facts alleged to constitute a crime shall be stated in the complaint or indictment with that reasonable degree of fullness, certainty, and precision requisite to enable them to meet the exact charge against them and to plead any judgment which may be rendered upon it in bar of a subsequent prosecution for the same offense. In criminal prosecutions, the description of the offense in the complaint or indictment must be certain, positive, and complete. State v. Strout, 132 Me. 134, 167 A. 859; State v. Crouse, 117 Me. 363, 104 A. 525; State v. Mace, 76 Me. 64; State v. Learned, 47 Me. 426; State v. Moran, 40 Me. 129; Const. of Maine, art. 1, § 6. It is accordingly held that in charging an attempt to commit a crime, which is akin to soliciting the same to be done, and by some authorities deemed inclusive of it, it is necessary to allege and set out with reasonable certainty the particular offense attempted. State v. Doran, 99 Me. 329, 59 A. 440, 105 Am.St.Rep. 278. Neither reason nor authority can be found for relaxing the strictness of this requirement when the indictment is for solicitation. A person accused of that offense is entitled to know the specific felony which it is alleged he solicited.

In the first, second, fourth, and fifth counts of the indictment in this case, the respondent is charged with soliciting a named person to burn the "house" or "a certain building, to wit, a house" of one Flora Rowe, in each count described as occupied by the respondent and known as "Fernwood Inn." The uncertainty and incompleteness of these charges are apparent. The word "house" in a legal sense is not limited to a structure designed for human habitation but may mean any building, edifice, or structure inclosed with walls and covered, regardless of the fact of human habitancy. It may be a private or a public house. 4 Words and Phrases, (First Series) p. 3351; 30 Corpus Juris 472; 4 Am.Jur., Arson, par. 15. Neither the term "house" nor "a certain building, to wit, a house," without more than an allegation of undefined occupancy, describes a dwelling house or a building occupied in part for dwelling or lodging house purposes, the burning of which under the circumstances there enumerated is statutory arson. Section 1, chapter 130, R.S., as amended. In a statute of similar import, the word "house" was so construed in Commonwealth v. Smith, 151 Mass. 491, 24 N.E. 677. If it was intended to indict the respondent for soliciting the setting fire to a building within the purview of section 2 of the statute, as amended, or of "any building * * * of another" mentioned in the succeeding section, 3, the respondent may well be in doubt as to which of these offenses she is charged with having solicited. They are separate and distinct felonies and the severity of the punishment prescribed differs greatly. The description of the house, to wit, the building to be burned upon the respondent's solicitation, should have been sufficiently definite to fix the identity of the...

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