State v. Dorr

• Decision Date: 15 February 1890
• Parties: STATE v. DORR.
• Court: Maine Supreme Court

19 A. 861

82 Me. 341

STATE

v. DORR.

Supreme Judicial Court of Maine.

Feb. 15, 1890.

(Official.)

Exceptions from supreme judicial court, Waldo county.

The indictment charged that defendant had sold "a quantity of intoxicating liquors" without lawful authority, and that he had been convicted of a prior single sale at a term of court held in 1088. Respondent filed a general demurrer to the indictment, which was joined by the attorney for the state. The demurrer was overruled, and the indictment adjudged sufficient. Respondent excepted.

Albert F. Sweetser, Co. Atty., for the State. W. P. Thompson and R. F. Dunton, for defendant.

EMERY, J. The respondent makes several objections to the indictment:

1. That his offense is alleged to be contrary to the form of the "statue," instead of contrary to the form of the "statute." If this objection could ever have prevailed, it cannot now, since the enactment of Rev. St. c. 131, § 12, which provides that the entire omission of the words, "contrary to the form o*f the statute," etc., shall not vitiate the indictment.

2. That the indictment does not specify the particular kind of intoxicating liquor he unlawfully sold. No such specification is necessary. The statute in terms forbids the sale of intoxicating liquor. Proof of sale of any intoxicating liquor proves the offense. The state need not allege more than it need prove. State v. Wyman, 80 Me. 117, 118, 13 Atl. Rep. 47.

3. That, in alleging a prior conviction of a similar offense, the time of such prior conviction is stated to be in the year 1088, and hence before any state of Maine existed to be offended by such a sale. This, clearly, is not a sufficient allegation of a prior conviction. It is an allegation of an impossibility. There could not have been any such conviction. The conviction alleged being impossible, the whole allegation should be disregarded.

But the insufficiency of the allegation of a prior conviction does not vitiate the indictment as to the main offense charged. The sale of liquor now complained of is sufficiently alleged. By his demurrer, he has confessed an offense properly charged against him, and no reason appears why he should not be adjudged guilty of that offense, whatever may have been the fact as to prior conviction. The offense he now stands charged with is the same in kind and grade in either case. There might be a difference in the degree, but not in the nature of the penalty.

The indictment, therefore, can be sustained,...