State v. Farnham

• Decision Date: 31 January 1921
• Citation: 112 A. 258
• Parties: STATE v. FARNHAM.
• Court: Maine Supreme Court

112 A. 258

STATE

v. FARNHAM.

Supreme Judicial Court of Maine.

Jan. 31, 1921.

Exceptions and Motion from Supreme Judicial Court, Lincoln County, at Law.

Grant Farnham was convicted of taking indecent liberties with a female child under 16, and he excepts and moves in arrest of judgment. Exceptions overruled, motion dismissed, and judgment ordered for the State.

Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, and WILSON, JJ.

G. A. Cowan, of Damariscotta, for plaintiff.

W. H. Hilton, for the State.

MORRILL, J. The motion in arrest of judgment in this case challenges the sufficiency of an indictment found under R. S. c. 126, § 6, in three particulars:

1. Because it does not allege that at the time of the commission of the alleged offense the respondent was 21 years or more of age. The allegation is:

"That Grant Farnham, of Boothbay Harbor, etc., on the first day of July, in the year of our Lord one thousand nine hundred and nineteen, being more than twenty-one years of age, did take," etc.

The argument of defendant's counsel is that the averment as framed may as well refer to the time of finding the indictment as to the time of the commission of the offense.

This contention cannot be sustained. "A material averment may sometimes be introduced with as much clearness and certainty by means of the participial clause commenced by the word 'being,' as in the form of the direct proposition of a declarative sentence." State v. Dunning, 83 Me. 181, 22 Atl. 109. While a careful observance of the rules of pleading would lead the pleader to use the word "then," or the words "then and there," after the word "being," such use of the adverb is not necessary when the participial clause refers to the person and precedes the verb.

Thus in the early case of Rex v. Moore, 2 Mod. 128, upon an information on the St. 4 & 5 Phil. & M. 6. 8, averring that the defendants "being above the age of fourteen years, took A., then being a virgin unmarried," etc., it was held that the "existens," added to the person, carries the sense to the time of the offense committed; so in Johnson's Case, Cro. Jac. 609; and in Rex v. Ward, 2 Ind. Raymond, 1467, it was held that the allegation "being chargeable to deliver three hundred and fifteen tons of alum" (existens onerabilis ad deliberandum) referred not to the time of exhibiting the information, but the committing of the offense; and referring to Rex v. Moore, supra, the report says, "In the case of Moore the existens precedes the verb ceperunt, and so refers and is tied up to the time of the taking"; thus cases of this kind are distinguished from Bridges Case, Cro. Jac. 639, and the like.

2. Because the indictment does not allege that the child, with whom the offense is alleged to have been committed, was under the age of 16 years at the time of the commission of the offense charged; the language is, "Dorathy Bucklin, a female child under the age of sixteen years." While it is usual to allege the exact age, for example, "to wit, of the age of nine years," the averment is sufficient and, as to the objection here raised, conforms to approved precedents. Bishop's Directions and Forms, p. 500, note 4. It is evident that the allegation must refer either to the time of finding the indictment or of the commission of the offense. If the child was under 16 years of age when the indictment was found, she must have been under that age at any previous time.

3. Because the indictment does not set out specific acts of the defendant which constitute the indecent liberties of which he is accused, The crime is created and made punishable by statute, and the indictment follows the language of the statute in charging that the respondent, on a day named, "did take indecent liberties with the sexual parts of one Dorathy Bucklin, a female child under the age of sixteen years." Although the words of the statute are used, the indictment is insufficient unless the facts constituting the offense are expressly set forth with such fullness and precision as to apprise the respondent of the charge which he must meet, and to enable him to prepare his defense, to enable him to plead the judgment, whether of conviction or acquittal, in bar of a later prosecution, and to enable the court to determine whether the facts stated in the indictment are sufficient to support a conviction. These familiar principles are at the foundation of the constitutional protection of every citizen. State v. Learned, 47 Me. 426; State v. Mace, 76 Me. 64; State v. Munsey, 114 Me. 408, 96 Atl. 729; State v. Crouse, 117 Me. 363, 104 Atl. 525.

When one is indicted for any offense, the presumption is that he is innocent thereof, and consequently that he is ignorant of the facts on which the pleader founds his charges; and it is a fundamental rule that the sufficiency of an indictment must be tested on the presumption that the defendant is innocent of the charge and has no knowledge of the facts charged against him in the pleading. He is unable to secure and present the evidence in his defense—indeed, he is deprived of all reasonable...