State v. Chase
Decision Date | 15 July 1953 |
Citation | 99 A.2d 71,149 Me. 80 |
Parties | STATE v. CHASE. |
Court | Maine Supreme Court |
Alexander A. LaFleur, Atty. Gen., Edward J. Beauchamp, County Atty., Androscoggin County, Lewiston, for plaintiff.
A. Alan Grossman, Rockland, and Louis Scolnik, Lewiston, for defendant.
Before MERRILL, C. J., and THAXTER, FELLOWS, NULTY, WILLIAMSON and TERRELL, JJ.
On exceptions. At the November 1952 Term of the Superior Court in Androscoggin County the respondent, Carl R. Chase, was arraigned, entered a plea of not guilty, was tried and found guilty of murder upon the following indictment:
'State of Maine
'Androscoggin, §§
'At The Superior Court, begun and holden at Auburn, within and for the County of Androscoggin, on the first Tuesday of September in the year of our Lord one thousand nine hundred and fifty-two.
'The Jurors For Said State upon their oath present that Carl R. Chase, of Boston, Massachusetts, on the 27th day of August, 1952, at Auburn in the County of Androscoggin, one Alex Yoksus, alias Alex York, feloniously, wilfully and of his malice aforethought, did make an assault and him, the said Alex Yoksus, alias Alex York, wilfully and of his malice aforethought did kill and murder, against the peace of said State, and contrary to the form of the statute in such case made and provided.
'A True Bill
'E. Beauchamp Attorney.
After trial and before judgment Chase filed a written motion in arrest of judgment wherein he stated:
'that the said indictment and matters therein alledged, in the manner and form in which they are therein stated, and not sufficient in law for any judgment to be rendered thereon, and the said indictment is bad for it does not state that the said Carl R. Chase committed any crime or criminal act, in the following particulars, to wit:
The case is now before us on exceptions to the denial of said motion by the presiding Justice.
Before entering upon a discussion of the present indictment the following general principles are to be borne in mind. In the early case of State v. Carver, 49 Me. 588 at page 593, we stated:
.
'Nor will judgment be arrested for anything that could have been pleaded in abatement.
In State v. Mockus, 120 Me. 84 at page 98, 113 A. 39, 45, 14 A.L.R. 871, we said:
Although one can find expressions in the opinions of this Court that a motion in arrest of judgment is equivalent to a demurrer, there is an important distinction between the two forms of attack upon indictments which must be borne in mind and which are applicable to the issues of this case. Due to the fact that the statute of jeofails has no application to criminal pleadings, formal defects in indictments remain proper subjects of general demurrer, as at common law. State v. Dunn, 136 Me. 299, 8 A.2d 594, State v. Mahoney, 115 Me. 251, 98 A. 750. In the latter case we stated:
* * *"
To multiply authorities to this effect would serve no useful purpose. With respect, however, to motions in arrest of judgment, the rule is different. We said in State v. Harvey, 124 Me. 226 at page 227, 127 A. 275
As said in State v. Wing, 32 Me. 581, supra, with respect to a motion in arrest of judgment which did not particularize the grounds upon which it was based,
In the instant case, the respondent pleaded not guilty, went to trial and was convicted. He did this without interposing either a motion to quash or a demurrer. His exceptions to the overruling of his motion in arrest of judgment must stand or fall upon the reasons therefor specified in said motion.
One group of objections to the indictment here involved are based upon the fact that the word on or upon was omitted before the words 'one Alex Yoksus' and that consequently the indictment failed to set forth that the respondent Chase made an assault upon any one and especially that it failed to allege that he made an assault upon Yoksus. The 3rd, 4th and 6th specifications, and so much of the 5th specification in the motion for arrest of judgment as relates to assault, are based upon this omission and all relate to the defective allegation of making an assault.
It is further objected that the omission of the word on or upon with respect to the assault and the failure to allege the making of the assault upon Yoksus renders the rest of the indictment so unintelligible that it fails to set forth that any one was killed or murdered or that Chase killed or murdered Yoksus. Specifications numbered 1, 2, 7 and so much of 5 as relates to the killing or murder of Yoksus are relied upon as raising this objection.
It is further objected that the indictment does not set forth the crime of murder in the language of the statutes of Maine as therein made and provided. This is specification No. 8.
Granting for the sake of argument that because the word on or upon is not inserted before the words 'one Alex Yoksus,' the allegation of an assault is fatally defective, it by no means follows that the indictment itself as an indictment for murder is likewise defective.
It is unnecessary in a murder indictment to allege the making of an assault by the accused upon the deceased. An indictment without an allegation of an assault is sufficient. An allegation of the assault is at most but a statement of the means by which the murder was accomplished, which need not be alleged in an indictment. R.S., (1944) c. 132, § 11; State v. Morrissey, 70 Me. 401; State v. Verrill, 54 Me. 408. See also State v. Smith, 65 Me. 257 and Ex parte Thompson, Petitioner, 141 Me. 250, 42 A.2d 900. It is true that these last two cases related to indictments for manslaughter, not murder. However, they both sustained the validity of the foregoing statute as declaratory of the common law and as nonviolative of Section 6 of Article 1 of the Constitution of Maine.
In State v. Morrissey, supra, it was contended that an indictment for murder which contained an allegation of an assault upon the deceased by the accused was defective because it did not set out the means by which the assault was perpetrated. The court stated with respect to this contention,
By the same token, if there be no necessity for any allegation of an assault in an indictment for murder, a defective allegation thereof does not vitiate the indictment. 'A defective charge is no, charge and may, be rejected as surplusage.' State v. Leavitt, 87 Me. 72 at page 80, 32 A. 787, at page 789.
The respondent in argument, however, urges that the rejection of the...
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