State v. Cole
| Decision Date | 03 June 1914 |
| Citation | 90 A. 709,112 Me. 56 |
| Parties | STATE v. COLE. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Penobscot County, at Law.
Ethma Cole was complained against for indecent exposure, and excepted to an order overruling the demurrer. Overruled. Judgment for state.
Argued before SAVAGE, C. J., and SPEAR, KING, HANSON, and PHILBROOK, JJ.
Donald F. Snow, Co. Atty., of Bangor, for the State. U. G. Mudgett, of Bangor, for defendant.
SAVAGE, C. J. Complaint under Rev. St. c. 125, § 5. The defendant demurred. The demurrer was overruled, and exceptions were taken.
The allegation in the complaint is that the defendant "did wantonly and indecently expose his person by then and there openly, and in the presence of the complainant, expose to view his private parts, against the peace of the state," and so forth.
The statute in question provides that "whoever wantonly and indecently exposes his person shall be punished." The only grounds of demurrer argued are that the act constituting the offense is not set out, and that under such a complaint a man might be convicted when he had merely accidentally exposed his person.
We think otherwise. The particular act by which it is alleged that the defendant "wantonly and indecently exposed his person" was the exposure of his private parts. And that is alleged. The very terms "wantonly and indecently" exclude accidental exposure. The points taken by defendant are not tenable. The exceptions must be overruled.
And in such case, unless a right to plead over was granted by the justice who ruled on the demurrer, judgment on the indictment was automatically for the state. In this case the record shows that the defendant in connection with his demurrer filed a so-called reservation of a right to plead over. But it does not appear that any such right was granted by the presiding justice. The bill of exceptions is silent. The right to plead over cannot be had by merely "reserving" it. It must be granted by the court. We cannot give effect to the reservation.
Exceptions overruled.
Judgment for the state.
To continue reading
Request your trial
-
Hutchins v. Libby
...38. There is no similar statute relating to a demurrer in criminal cases. The common law rule in criminal cases is given in State v. Cole, 112 Me. 56, 90 A. 709, where it is held that in misdemeanor cases when demurrer is filed to a complaint and overruled, 'the right to plead over cannot b......
-
State v. Rogers
...is for the State unless the right to plead over was reserved by the respondent and leave therefor granted by the court. State v. Cole, 112 Me. 56, 90 A. 709; State v. Munsey, 114 Me. 408 at page 411, 96 A. Upon the filing of a demurrer it is the duty of the court to render judgment thereon.......
-
State v. McNally
...plead anew. It appears also that the presiding justice, when overruling the demurrer, expressly granted this right to plead. State v. Cole, 112 Me. 56, 90 A. 709. The entry will therefore Exceptions overruled. Respondent to plead over. ...
- Oakes v. Pine Tree State Mut. Fire Ins. Co.