State v. Clark
| Decision Date | 26 December 1893 |
| Citation | 86 Me. 194,29 A. 984 |
| Parties | STATE v. CLARK. |
| Court | Maine Supreme Court |
Exceptions from supreme Judicial court, Cumberland county.
The case originated in the municipal court for the city of Portland on the following complaint:
"Eben N. Perry, on the 12th day of January, in the year of our Lord one thousand eight hundred and ninety-three, in behalf of said state, on oath complains that Frederick A. Clark, of Portland, in said county, on the 11th day of January, A. D. 1893, at said Portland, then and there having the custody and control of a certain horse, did then and there unnecessarily fail to provide such horse with proper shelter and protection from the weather, against the peace of the state, and contrary to the form of the statute in such case made and provided."
The defendant was convicted, and appealed to the superior court, where he was tried before a jury, and found guilty. He thereupon moved in arrest of judgment, because the complaint did not follow the language of the statute under which it was brought The motion having been overruled, he brought exceptions. Exceptions overruled.
C. A. True, Co. Atty., for the State. John C. & F. H. Cobb, for defendant.
The complaint, after proper averments as to time and place, avers that the defendant, "then and there having the custody and control of a certain horse, did unnecessarily fall to provide such horse with proper shelter and protection from tie weather, 'contra pacem et contra formam statuti.'"
The statute, Rev. St. c. 124, § 29, provides that "every person who cruelly overdrives * * * any horse, * * * or, having the charge or custody thereof, as owner or otherwise, unnecessarily fails to provide such animal with proper food, drink, shelter, and protection from the weather," shall be punished.
The defendant, having been convicted below, contends that judgment should be arrested, because the complaint does not charge him with having the charge and custody of the horse, as owner or otherwise.
The words, "charge" and "custody" are frequently used as synonymous. The lexicographers give them as synonyms. They are placed in the statute, however, disjunctively, and in such cases need not be conjunctively averred, and cannot be disjunctively averred. The statute word "custody," therefore, in the complaint, sufficiently charges the defendant's control of the horse. It is not necessary to define the nature of the defendant's custody "as owner or otherwise." Those...
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State v. Dumais
...to proof that the matter is then pending. It may allege and prove the alternative, as was undertaken in this instance. In State v. Clark, 86 Me. 194, 29 A. 984, there was considered the phraseology of the statute providing a penalty for cruel treatment of a horse by a person "having the cha......
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Monroe County Motor Co. v. Tennessee Odin Ins. Co., 1
...of the vehicle. The words 'charge' and 'custody' are frequently used as synonyms. The lexicographers give them as such. State v. Clark, 86 Me. 194, 29 A. 984; In re Boulware's Will, 144 Miss. 235, 258 N.Y.S. Custody of a thing means to have it in charge. The term implies temporary physical ......
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...person complained of, even though he be the owner, has not the charge and custody of the animal. See Com. v. Tuck, supra; State v. Clark, 86 Me. 194, 29 Atl. 984; Com. v. Curry, 150 Mass. 509, 23 N. E. 212; Com. v. Edmunds, 162 Mass. 517, 39 N. E. 183; State v. Haley, 52 Mo. App. 520. The m......
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