State v. Dunn

• Decision Date: 07 October 1939
• Citation: 8 A.2d 594
• Parties: STATE v. DUNN.
• Court: Maine Supreme Court

8 A.2d 594

STATE

v. DUNN.

Supreme Judicial Court of Maine.

Oct. 7, 1939.

Report from Superior Court, Lincoln County.

Colin R. Dunn was charged by indictment with violations of election statutes, and on filing of a demurrer the case was reported to the Supreme Judicial Court under stipulation that if indictment was sufficient case should stand for trial, otherwise indictment should be quashed.

Judgment in accordance with opinion.

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

James Blenn Perkins, Jr., Co. Atty., of Boothbay Harbor, for the State.

Pattangall, Goodspeed & Williamson, of Augusta, for respondent.

DUNN, Chief Justice.

To this indictment, which has sixty-seven counts, twenty-five drawn under the single section of Public Laws of 1935, Chapter 134, with forty-two allegedly for violations of provisions of Section 10 of Chapter 9 of the 1930 revision of the statutes, the respondent filed a demurrer. Whether it is general or special is not of mention, nor is the demurrer itself in the printed record.

On filing of the demurrer, the case was, the parties assenting, reported to this court, a stipulation stating that, if the indictment be held good and sufficient, as upon demurrer, the case shall stand for trial; otherwise the indictment shall be quashed.

1935 Laws, Chapter 134, of mention above, refers to, and thereby makes a part of itself, not Section 10 of Chapter 9, also of notice hereinbefore, in entirety, but the final, or penalty prescribing feature thereof, and no other of its words or phrases. The text of such adapted part does not employ the adverb "wilfully". This is our answer to contention otherwise.

The first, or twenty-five count group in the indictment, alleged the commission, as to five voters, of as many separate but affiliated criminal offenses, by the officer presiding at a town voting place in a State election. These, as laid, concern not affording opportunity for the challenging of individual voters, challenges of such voters, permitting each of them to vote without prior compliance with statute requirements, and failure to make notations, and as well returns, of challenges.

In the second group, as to the votes of each of fourteen voters voting in absence, are charges against the same election official, of three allegedly different crimes.

The demurrant's argument goes wholly to the indictment. The question of the legal sufficiency of that accusatory document as a pleading was the seemingly sole object of a general demurrer, and alone the ground of prayer for judgment.

Formal defects in indictments remain proper subjects of general demurrer, as at common law. State v. Mahoney, 115 Me. 251, 98 A. 750. On the other hand, if an indictment contain both good and bad counts, a general demurrer must be held insufficient. State v. Miles, 89 Me. 142, 36 A. 70.

The offenses the indictment lays are purely statutory ones, by the officer of election. In general, the indictment for such an offense, the statute describing it in whole, is simply required to cover only, with time and place, all the material statutory terms, and need not be expanded beyond them. Commonwealth v. Connelly, 163 Mass. 539, 40 N.E. 862; State v. Lockbaum 38 Conn. 400; State v. Bailey, 21 Me. 62.

The leading rule for all indictments on statutes is to embody in allegation all the elements necessary to constitute the offense, either in the words of the statute, or in language which is its substantial equivalent. Tully v. Commonwealth, 4 Metc, Mass., 357; Commonwealth v. Welsh, 7 Gray, Mass., 324; State v. Hussey, 60 Me. 410, 11 Am.Rep. 206; State v. Bushey, 96 Me. 151, 51 A. 872; State v. Conant, 124 Me. 198, 126 A. 838. It is never requisite that the indictment should disclose the evidence by which it is to be supported. Commonwealth v. Harris, 13 Allen, Mass., 534. And a negative averment is not usually required to be so full as an affirmative one. Bishop, Crim.Pro., 1, Section 641.

The counts in the indictment—or some one of them at least, as, for instance,...