State v. O'Clair
| Decision Date | 14 June 1972 |
| Citation | 292 A.2d 186 |
| Parties | STATE of Maine v. Fred O'CLAIR. |
| Court | Maine Supreme Court |
Foahd J. Saliem, County Atty., Oakland, for plaintiff.
Wathen & Wathen by George A. Wathen, Daniel E. Wathen, Augusta, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
On October 3, 1968 Fred O'Clair, the appellant, was indicted under 17 M.R.S.A. § 754 for the crime of breaking and entering, with intent to commit larceny, the building of Standard Auto Parts, Inc. situated at Waterville, Maine. Tried before a Kennebec County jury on June 30, 1969, he was found guilty as charged and sentenced on July 2, 1969 to a term in Maine State Prison of not less than 2 1/2 years and not more than 5 years. He appeals to this Court from the judgment of conviction and from the subsequent denial of his motion for a new trial grounded on newly discovered evidence. The appeal is denied.
The appellant's threshold attack was directed against the indictment under Rule 12 of the Maine Rules of Criminal Procedure. He seasonably moved to dismiss the charge, claiming the indictment was fatally defective in that it failed to state facts constituting a criminal offense and, couched as it was in the words of the statute, it did not apprise him with reasonable certainty of the nature of the accusation against him.
The indictment reads in pertinent part as follows:
'The Grand Jury Charges: That Fred O'Clair of Winslow in the County of Kennebec and State of Maine, on or about the eighteenth day of February A. D. 1968, at Waterville, in said County of Kennebec, in the night time of said day did break and enter the building of the Standard Auto Parts, Inc., a corporation, being a place where valuable things were then and there kept, with intent to steal, take and carry away and permanently deprive the Standard Auto Parts, Inc., a corporation, of its property.'
The appellant first challenges the sufficiency of the description of the accused, where the indictment merely identifies the indicted person as Fred O'Clair of Winslow in the County of Kennebec and State of Maine, whereas the evidence does reveal that the appellant has a son bearing the same name who, prior to the finding of the indictment, was arrested on the warrant then pending for the arrest of Fred O'Clair. The evidence is clear that this arrest was made by an officer who had no knowledge of the facts upon a misdirection from police headquarters and that it was brought about by the appellant himself who told the arresting officer when being arrested on the warrant that the wanted man was his son. An accused is entitled to have an indictment describe him by his full and correct name. It is only when his full and correct name is unknown that further particulars of identity such as physical characteristics, sex, occupation, place of residence, or other details of identification must of necessity be alleged. See, State v. Striar, 1922, 121 Me. 519, 118 A. 377.
The appellant does not dispute that the instant indictment carried his full and correct name. Under such circumstances, his constitutional right to be protected against an unreasonable seizure (Constitution of Maine, Article I, § 5) or a vague accusation (Article I, § 6) is complied with since the use of his full and correct name should usually enable the officer to apprehend the proper person and the accused to maintain a plea of former jeopardy if, after conviction or acquittal, a second charge for the same offense is brought against him. The indictment on its face described the person of the appellant with exactitude and is not rendered deficient in matter of substance by reason of the plurality of persons of the same name. The issue then becomes one of identification at trial and from the evidence the jury was justified in finding beyond a reasonable doubt that the appellant was one of the burglars, if not the only one, involved in the burglary at the Standard Auto Parts, Inc.
The appellant's second charge upon the sufficiency of the indictment focusses upon the lack of particulars respecting the intended loot. He contends that the description of the statutory intent to commit larceny (in the instant case-a necessary ingredient of the crime of burglary under 17 M.R.S.A. § 754) is in such broad terms (with intent to steal, take and carry away and permanently deprive the Standard Auto Parts Inc., a corporation, of its property) that it does not apprise him of the charge he has to answer with that degree of specificity as will satisfy the mandates of our State and Federal Constitutions.
In all criminal prosecutions the accused shall have a right to demand the nature and cause of the accusation. Constitution of Maine, Article I § 6; Amendment VI to the Constitution of the United States. The general rule is that these constitutional requirements are satisfied when the indictment contains such plain, concise and definite allegations of the essential facts constituting the intended offense as shall adequately apprise an accused of reasonable and normal intelligence of the criminal act charged and the nature thereof, sufficiently enabling him to defend and, upon conviction or acquittal, to make use of the judgment as a basis of a plea of former jeopardy, should the occasion arise. State v. Charette, 1963, 159 Me. 124, 188 A.2d 898; State v. Chick, 1970, Me., 263 A.2d 71, 75.
The appellant's claim that a valid indictment charging the crime of breaking and entering a building in which valuable things are kept with intent to commit a larceny therein under 17 M.R.S.A. § 754 must describe the intended larceny with that degree of particularity as is necessary in an indictment for the specific offense of larceny itself to the extent of describing the goods intended to be stolen, was fully rejected in Lumsden v. State, 1970, Me., 267 A.2d 649. The averment of an intent to steal goods or property in general terms is sufficient. We repeat what we said in Lumsden, supra, at page 652:
The appellant lastly presses his claim for dismissal of the indictment on the ground he was denied due process of law by reason of the State's failure to afford him a speedy trial as necessitated by Article I, § 6 of the Constitution of Maine and the Sixth Amendment to the Constitution of the United States made applicable to the States through the Fourteenth. A person accused of crime is entitled to a discharge or dismissal, if his constitutional right to a speedy trial is violated, and a motion addressed to the court at which the indictment is pending is a proper vehicle for raising such issue. Rule 48(b) M.R.Crim.P. O'Clair's claim of violation of due process is without merit.
The record indicates the following happenings subsequent to the finding of the indictment in October, 1968. On November 13, during the continuing October term, the appellant filed his motion for dismissal of the indictment for insufficiency of its allegations. No action was then taken on the motion by the Presiding Justice because O'Clair had simultaneously moved that the Presiding Justice disqualify himself. The reasons for the recusation do not appear as the motion was not reproduced in this appeal, but the record reveals that the Justice did disqualify himself at the appellant's request. Other relief was granted, however, by the Justice such as the order to file particulars of the charge discovery and the setting of bail. The appellant was enlarged to bail on November 14, 1968. On December 12, the case was officially put over to the February term 1969 which was then the next grand jury and criminal term in that county. The Justice presiding at the February term on February 12, 1969 acted on O'Clair's pending motion to dismiss and denied the same. Simultaneously, the Court continued the matter to the following June to be tried with other criminal trials of the May term, the existing bail was cancelled, new bail was ordered and the appellant was committed pending the giving of new bail. The record indicates that these proceedings took place in chambers and all orders were made orally. If this means that no court reporter was present during the course of this judicial activity, we disapprove of such practice. However, no objections were raised to any of the judicial decrees. It was on May 26, 1969 that the appellant, for the first time, manifested belatedly any personal disagreement with the Court's previous scheduling of the case for trial. His motion of that date to dismiss the indictment for alleged violation of his constitutional right to a speedy trial was grounded on the bare excuse that he was led to believe that a judge would be available to hear the case in January, 1969.
The burglary for which the appellant was indicted in October 1968 was committed in February of that year. Undoubtedly, the delay in the presentation of the case before the grand jury was occasioned by the appellant's own crafty maneuvering. Officer Davey of the Maine State Police had received a call from...
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