State v. Doran

• Decision Date: 05 December 1904
• Citation: 99 Me. 329,59 A. 440
• Parties: STATE v. DORAN.
• Court: Maine Supreme Court

59 A. 440

99 Me. 329

STATE

v. DORAN.

Supreme Judicial Court of Maine.

Dec. 5, 1904.

(Official.)

Exceptions from Supreme Judicial Court, York County.

John Doran was indicted for attempting to break and enter a certain car of the Boston & Maine Railroad "for the purpose of committing a felony," and upon trial was found guilty. Thereupon he moved in arrest of judgment. The motion was overruled, and the defendant excepted. Exceptions sustained.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

George L. Emery, Co. Atty., for the State.

Anthony Dwyer, for defendant.

WHITEHOUSE, J. It is alleged in the indictment that the defendant, "with force and arms, the car numbered 18,056 of the Boston & Maine Railroad * * * feloniously, willfully, and maliciously did attempt to break and enter for the purpose of committing a felony." The jury returned a verdict of guilty, and the defendant moved in arrest of judgment; among other reasons, "because no specific offense against the laws of this state is alleged against the said Doran in said indictment, and that no judgment could be rendered upon the verdict in said court." The motion was overruled by the presiding judge, and the ease comes to this court on exceptions to this ruling.

The indictment appears to be founded on section 9 of chapter 132, Rev. St., relating to "attempts to commit offenses," and section 8 of chapter 120, Rev. St., descriptive of the offense which the defendant was charged with attempting to commit. Section 9 of chapter 132 provides that "whoever attempts to commit an offense, and does anything towards it, but fails, or is interrupted or prevented in its execution," shall be punished as therein provided; and section 8 of chapter 120 declares that "whoever, with intent to commit a felony, breaks and enters a * * * railroad car of any kind, or building in which valuable things are kept," shall suffer the penalty therein specified.

It appears from a comparison of these provisions with the language of the indictment that only the general terms of the statute have been employed to state the charge against the defendant, both with respect to the "attempt" to commit the offense and the "felony" which he intended to commit. The indictment contains neither a description of the overt act done by the accused in attempting to commit the crime charged, nor a specification of the particular felony which the defendant is charged with attempting to commit after breaking and entering the car.

Where the offense is created by statute, and the facts constituting it are fully set out, it is undoubtedly sufficient to charge the offense in the language of the statute without further description. 1 Bish. Cr. Proc. § 611. But "in all criminal prosecutions the accused shall have a right * * * to demand the nature and cause of the accusation." Const. Me. art. 1, § 6. He has a right to insist that the facts alleged to constitute a crime shall be stated in the indictment against him with that reasonable degree of fullness, certainty, and precision requisite to enable him to meet the exact charge against him, and to plead any judgment which may be rendered upon it in bar of a subsequent prosecution for the same offense. Hence, if a statute creating an offense fails to set out the facts constituting it sufficiently to apprise the accused of the precise nature of the charge against him, a more particular statement of the facts will be required in the indictment. "And where a more generic term is used, or where the words of the statute by their generality may embrace cases which fall within the terms but not within the spirit or meaning thereof the specific facts must be alleged to bring the defendant precisely within the inhibition of the law." Enc. of Pl. and Prac. vol. 10, p. 487; Wharton's Cr. Pl. and Prac. § 220. Indeed, it is an elementary rule of criminal pleading that every fact or circumstance which is a necessary ingredient in a prima facie case of guilt must be set out in the indictment.

With respect to indictments for attempts to commit offenses Mr. Bishop says: "An attempt is an intent to do a particular criminal thing with an act towards it falling short of the thing intended [1 Bish. Cr. Law, § 728], and on principle we see that we must set out the act which was committed and the specific intent which accompanied it." Bish. on Stat. Cr. § 394; 2 Crim. Proa §§ 1, 92; Directions and Forms, § 100. In 2 Wharton's Crim. Law the author says: "Attempt is a term peculiarly indefinite. It has no prescribed legal meaning. It relates from its nature to unconsummated offenses. * * * Attempts may be merely in conception or in preparation, with no causal connection between the attempt and any particular crime. * * * In an indictment for an attempt it is essential to aver that the defendant did some act which, directed by a particular intent, which must be averred, would have apparently resulted in the ordinary and likely course of things in a particular crime." Sections 2703, 2705. To constitute an attempt, there must be something more than...