State v. Derry

• Decision Date: 14 January 1920
• Parties: STATE v. DERRY.
• Court: Maine Supreme Court

108 A. 568

STATE

v. DERRY.

Supreme Judicial Court of Maine.

Jan. 14, 1920.

Exceptions from Superior Court, Cumberland County, at Law.

Harry Derry was convicted of violation of Rev. St. c. 26, § 38, relating to operation of motor vehicles upon any highway recklessly or while under the influence of intoxicating liquors, and he brings exceptions. Exceptions overruled, and judgment for the state.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

Carroll L. Beedy and Clement F. Robinson, both of Portland, for the State.

Wm. C. Eaton and George S. Murphy, both of Portland, for respondent.

DEASY, J. At the January, 1919, term of the superior court for Cumberland county, Harry Derry was convicted of a violation of section 38, c. 26, R. S.

The complaint before the municipal court brought to the superior court by appeal charged that he "did operate and control a certain automobile on the public highway in a reckless manner, while being then and there under the influence of intoxicating liquor, so that the lives of the public were in danger."

The statute under which the complaint was drawn reads:

"Whoever operates a motor vehicle upon any way, recklessly or while under the influence of intoxicating liquor, so that the lives or safety of the public are in danger, * * * shall be punished," etc. R. S. c. 20, § 38.

The presiding justice instructed the jury in substance that, if they found that the respondent either recklessly or while intoxicated, drove a ear on a public way so as to endanger the lives of the public, a verdict should be rendered against him.

After the jury bad retired, they were, against the respondent's objection, recalled by the presiding justice, who then withdrew from the jury the question of the respondent's intoxication, and said:

"My instructions will accordingly be modified so that it will not be necessary for you to consider and determine the fact as to whether or not the respondent was intoxicated.

"You will confine yourselves and within the instructions already given you, to the question whether or not he operated a motor vehicle on that day in a reckless manner so as to endanger the lives or safety of the public, and let your verdict depend upon the finding upon that one question."

After the verdict, and before sentence, the respondent filed a motion in arrest of judgment, on the ground that the complaint "is bad for duplicity in the following particulars, to wit, that it attempts to set out two separate and distinct offenses."

The respondent seasonably claimed and presents four exceptions: (1) To the part of the original charge above quoted; (2) to the recall of the jury for corrected instructions; (3) to the instructions given after the recall of the jury; and (4) to the overruling of the motion in arrest of judgment.

The respondent's counsel does not strenuously argue the first three exceptions. In the second instruction given there was clearly no error. If the respondent operated a motor vehicle in a public way so as to endanger the lives or safety of the public, and did so recklessly, he is liable to the penalty of the statute without regard to his condition of sobriety or ebriety.

It is unnecessary to pass upon the alleged error in the charge as originally given, for the right of the presiding justice to correct his instructions, either before or by recalling the jury after their retirement, directing attention specifically to any part of the original charge withdrawn or qualified, has been determined by so many judicial authorities as to be beyond dispute. Short v. State, 140 Ga. 780, 80 S. E. 12; Com. v. Poisson, 157 Mass. 510, 32 N. 906; People v. Hoffman. 142 Mich. 531, 105 X. TV. 857: State v. Furgerson, 152 Mo. 92, 53 S. W. 427; People v. M'Kay, 122 Cal. 628, 55 Pac. 594; Lindsey v. State. 67 Fla. 111. 64 South. 501; State v. Hough, 97 S. C. 24. Si S. E. 187; Mdody v. State. 13 Okl. Cr. 327, 104 Pac. 676; Gather v. State (Tex. Cr. App.) 81 S. W. 717; State v. Miller. 78 Wash. 208, 138 Pac. 896; Rodermund v. State, 167 Wis. 577, 168 N. W. 390; Hardesty v. State, 95 Neb. 889, 140 N. W. 1007.

It is true, as said by the Georgia court in the case of Rawlins v. State, 124 Ga. 47, 52 S. 10. S, that—

"There may be an error of such a character that nothing done by the judge can correct the harmful effect of it."

If, however, any error was made in the charge in the present case it was not of such character as to be beyond cure.

The first three exceptions must be overruled.

The fourth exception is to the overruling of the respondent's motion in arrest of judgment.

The ground of this motion as therein stated is "that it [the complaint] attempts to set out two separate and distinct offenses."

This literally construed points out no error. It is entirely proper to set out two separate and distinct offenses in a complaint, provided they are of the same nature and are set forth in different counts. The prosecutor may be required to make his election, but this is not by reason of any fault or error in the complaint or indictment. Wharton, Crim. Proc. §§ 335-344; Bishop, New Crim. Proc. §§ 424-432.

The whole record sufficiently shows, however, that what the respondent relies upon is the setting out of two separate and distinct offenses in one count. Operating a motor vehicle "recklessly" with the other elements as defined in the statute is one offense; operating such a vehicle "while under the influence of intoxicating liquor" is another and distinct offense, so the respondent claims, and both are set forth in one count.

The position of the state is that: (a) Duplicity cannot be taken advantage of by motion in arrest of judgment; (b) count not duplicitous; and (c) error, if any, cured by the corrected charge.

The verdict in the instant case was general, and the respondent relies upon State v. Leavitt, 87 Me. 72, 32 Atl. 787. The judgment in the Leavitt Case was not arrested, but was ordered on the verdict on the ground, however, that the verdict was special and not general.

The opinion says:

"If * * * the verdict had been general, * * * the objection [by motion in arrest] would have been well taken."

This is of course mere dicta. Moreover, the authorities cited in the case yield but slender support to it.

It cites State v. Smith, 61 Me. 386, which merely reiterates the elementary proposition that a duplicitous count is bad on demurrer. Com. v. Symonds, 2 Mass. 163; Com. v. Holmes, 119 Mass. 195, and State v. Nelson, 8 N. H. 108, which held that:

"When one count in an indictment charges two offenses, distinct in kind and requiring distinct punishments, the objection of duplicity has been allowed in arrest of judgment" —and People v. Wright, 9 Wend. (N. Y.) 193.

Of this latter case a later opinion of the same court says:

"The point whether duplicity was a good ground for arresting the judgment was not particularly considered." Polinsky v. People, 73 N. Y. 72.

Of the cases cited the only one in point is a case in which the question involved, in the Leavitt Case and in the present one, was confessedly "not particularly considered."

No other authority sustaining the respondent's position has been called to our attention. In the case of State v. Berry, 112 Me. 501, 92 Atl. 619, a motion in arrest of judgment was sustained, but not by reason of duplicity.

The earlier Maine cases, the courts of other states and the text-books with substantial uniformity hold and declare that a motion in arrest of judgment cannot, except under conditions not present in the pending case, be grounded on duplicity.

"If two distinct...