State v. Dumais

• Decision Date: 18 September 1940
• Citation: 15 A.2d 289
• Parties: STATE v. DUMAIS.
• Court: Maine Supreme Court

15 A.2d 289

STATE

v. DUMAIS.

Supreme Judicial Court of Maine.

Sept. 18, 1940.

Report from Superior Court, Androscoggin County.

Arthur Dumais was charged, by two indictments, with soliciting a bribe and with bribery. The defendant challenged the sufficiency of the indictments. On report from the superior court.

Indictment for solicitation of a bribe held sufficient and case remanded for trial, and indictment for bribery held insufficient and case remanded for entry quashing the indictment.

Argued before DUNN, C. J, and BARNES, STURGIS, THAXTER, HUDSON, and MANSER, JJ.

Edward J. Bcauchamp, Co. Atty, of Lewiston, for the State.

Benjamin L. Berman, David V. Berman, and Israel Alpern, all of Lewiston, for defendant.

MANSER, Justice.

The sufficiency of two indictments is challenged and the questions of law involved are reported to the Court for determination. The first indictment is at common law, alleging in substance that the respondent, while a member of the School Committee of Lewiston, solicited a bribe from a candidate for appointment as janitor of a school building in return for his vote and influence in furtherance of such appointment.

Solicitation of a felony is an offense indictable at common law. State v. Beckwith, 135 Me. 423, 198 A. 739. The first objection is that the language of the indictment does not clearly state that the initiative was taken by the respondent, while the criminality of solicitation is because the respondent sets a scheme in motion and creates in the bribe-giver a willingness to bribe. The phraseology used was that the respondent "feloniously and corruptly did offer and agree to vote for" Joseph Galarneau as janitor, "provided the said Joseph Galarneau would pay to the said Arthur Dumais the sum of three hundred dollars in money for his vote," etc.

The wealth of the English language does not restrict the pleader to the use of a particular word, such as the word "solicit", if the meaning of the term used is clear and explicit. The' common understanding of the word "offer" is verified by the dictionaries as "to bring to or before"; "to hold out to"; "to proffer"; "to make a proposal"; "to essay the accomplishment of".

When it is alleged that the respondent offered to do something of advantage to another, provided he received in return a bribe, no uncertainty could have resulted in the mind of the respondent that he was charged with solicitation of a bribe.

Further objecting, and using as a premise that, when an indictment is for solicitation, the person accused of the offense is entitled to know the specific felony which it is alleged he solicited, the respondent here says that the statutory crime of bribery is not sufficiently set out. The statute involved is R.S. c. 133, Sec. 5. The particular objection is that the statute requires that the bribe must be in connection with "any matter pending, or that may come legally before him in his official capacity." It is asserted there is want of specific averment that the matter was pending, and further failure to use the word "legally". It is true there is no averment that the matter was then pending. Instead, it is alleged that the appointment of a janitor "would come before the meeting of the Superintending School Committee which meeting was to be held on or about April 8, 1936, for the purpose of appointing a janitor," etc. The statute clearly covers bribery, (1) "in any matter pending," (2) "or that may come legally before him." The word "or" in this connection is disjunctive. The corrupt act may occur when a matter is pending, or instead, it may be with reference to a matter that may come legally before him. The State is not limited 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 charge or custody thereof" and objection was made that the complaint did not charge the defendant with having the charge and custody of the horse. The Court said that, while the words "charge" and "custody" are frequently used as synonymous, "they are placed in the statute, however, distjunctively, and in such cases need not be conjunctively averred, and cannot be disjunctively averred."

Again, the respondent says that, as the statute uses the word "legally", it must be used in the indictment.

"The indictment should state all the elements necessary to constitute the offense, either in the words of the statute, or in language which is its substantial equivalent." State v. Bushey, 96 Me. 151, 51 A. 872; State v. Hussey, 60 Me. 410, 11 Am. Rep. 206.

The indictment alleges the election and qualification of the respondent as a member of the Superintending School Committee, an executive office under the laws of the State of Maine; that, as such, he was then and there by law charged with the selection of suitable persons to serve as janitors in the care, maintenance, and upkeep of school buildings; that the Jordan School building was one of the public school buildings of the city; that Joseph Galarneau was a candidate for appointment as janitor of said building; that the respondent "feloniously and corruptly did offer and agree to vote for and help further the appointment of the said Joseph Galarneau as janitor of the said Jordan School building when the matter would come before the meeting of the Superintending School Committee, which meeting was to be held on or about April 8, 1936, for the purpose of appointing a janitor for the said Jordan School building," etc.

This phraseology, says the respondent, does not apprise him that the matter may come legally before him in his official capacity. The word "legally" does not appear. In State v. Robbins, 66 Me. 324, at page 328, the Court said:

"It is undoubtedly the safer course to follow the language of the statute in describing the offense charged in the indictment. But it has been repeatedly held that words equivalent in their meaning to those in the statute may be used."

The indictment should state facts not state conclusions. State v. Bushey, supra. It must contain a statement of all the facts and it need contain nothing more. Bishop on Criminal Procedure, 2d Ed., § 331. The cases of State v. Beasom, 40 N. H. 367, and State v. Flagg, 50 N.H. 321, cited by the respondent in support of the contention that the word "legally" was essential, were decided in accordance with this principle. Both reviewed indictments for obstructing an officer in the service of "legal Process". The Court held that the indictment "must state the process to be legal, or so describe it that it shall appear to be so." (Italics ours)

The real question is whether there is a sufficient allegation of facts to show that the offense was within the statutory definition. In the last analysis, having stated all the facts which constitute the transaction, it is for the Court to determine whether the appointment of...