State v. Grant

• Decision Date: 10 June 1970
• Citation: 266 A.2d 232
• Parties: STATE of Maine v. Lester GRANT.
• Court: Maine Supreme Court

Page 232

266 A.2d 232

STATE of Maine v. Lester GRANT.

Supreme Judicial Court of Maine.

June 10, 1970.

Alexander MacNichol, Asst. County Atty., Portland, for plaintiff.

Grover G. Alexander, Gray, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE and WEATHERBEE, JJ.

WEBBER, Justice.

On appeal. Defendant was convicted by jury verdict of the offense of reckless homicide.

Omitting the formal portions, the indictment charged:

'That on the ninth day of October, 1966, in the Town of Brunswick, County of Cumberland and State of Maine, the defendant Lester E. Grant, did , after having consumed a certain quantity of intoxicating liquor, then and there with reckless disregard for the safety of others, and in particular for the safety of one Harold Austin, operate a certain uninspected and unregistered motor vehicle in which the said Harold Austin was riding as a passenger, to wit: a truck, in a general southerly direction over and along Harpswell Road, so-called, a public highway in said Brunswick which highway was well known to the defendant as one having a great many sharp curves and turns and upon which highway the State Highway Commission, Secretary of State and Chief of State Police acting jointly, having fixed the maximum rate of speed to be then and there forty miles per hour, and signs giving notice of such speed having been erected by the State Highway Commission and then and there appearing on said highway, and while so operating on said highway, and while so operating and driving, did operate and drive at speeds of sixty and seventy miles per hour causing said motor vehicle to travel from the right lane of said highway to the left lane and while so situated proceeded southerly at the said speeds aforesaid on a curve and grade in said highway and after speeding down said grade the said Lester E. Grant then and there again caused the said motor vehicle to again swerve to the left of the center of said highway and to go off the left side the highway and then further travelled back to the right of the center of the highway and while then and there so operating at said speeds aforesaid so operated and steered said motor vehicle so that it rolled over and then struck with great force and violence a tree off the right side of the highway, and as a result of such disregard for the safety of others and in particular as a result of the reckless disregard for the safety of said Harold Austin, he, the said Lester E. Grant did thereby then and there cause the death of said Harold Austin on the ninth day of October, 1966, a time which is within one year after the aforesaid reckless acts of the defendant.' (Emphasis ours)

Defendant seasonably moved (a) to dismiss the indictment for failure 'to set forth and charge a crime punishable by law' and for failure 'to fairly set forth with sufficient clarity the act or acts of recklessness with which the defendant is charged, so as to enable him to fairly prepare a defense thereto;' and (b) alternatively, to strike from the indictment as surplusage the words 'after having consumed a certain quantity of intoxicating liquor' and the words 'uninspected and unregistered.' The presiding Justice ordered stricken the words 'uninspected and unregistered' but declined either to dismiss the indictment or to strike the other phrase. Before trial commenced, the prosecuting attorney disclosed his intention to offer proof that defendant was under the influence of intoxicating liquor at the time of his alleged operation of the motor vehicle. The Court indicated its intention to permit the introduction of such evidence if offered. Counsel for defendant spread upon the record his objection grounded upon the failure to charge 'influence' and upon claimed surprise and prejudice. During the trial when the occasion arose, counsel for defendant renewed his objection to the introduction of evidence relating to defendant's condition with respect to sobriety. Thus the issue was carefully preserved for review upon appeal.

The indefiniteness of the words 'certain quantity' readily lends itself to an argument in the nature of reductio ad absurdum. Proof that defendant had consumed a teaspoonful of brandy or an ounce of table wine would have met the requirements of the allegation while contributing nothing to the proof of the ultimate fact of reckless homicide. A charge of consumption of an undefined quantity of intoxicating liquor falls far short of charging intoxication or impairment or influence therefrom which might be an important contributing factor in a reckless homicide case. Without inclusion of the challenged phrase, the indictment charges as underlying facts recklessly excessive speed and a reckless failure to maintain control of the vehicle, all resulting in a fatal accident. In short, the indictment effectively charges reckless homicide and in no way depends for validity upon the allegation pertaining to the consumption of intoxicating liquor. We cannot indulge in speculation, surmise or conjecture as to what may have prompted the Grand Jury to employ this phrase. We are concerned only with the allegation as it is worded and its effect upon the defendant's ability to prepare an adequate defense.

In State v. Warner (1967 Me.) 237 A.2d 150 we restated the familiar rule that the indictment must adequately inform the defendant as to the factual nature of the charge in order that he may be able to defend and in addition to make use of the conviction to sustain a plea of double jeopardy, should the occasion arise. In Warner the indictment properly alleged that the defendant 'was then and there under the influence of intoxicating liquor' as a fact contributing to reckless homicide.

In State v. Charette (1963) 159 Me. 124, 127, 188 A.2d 898 we noted that, although the indictment need not constitute a 'recital of evidence,' it must contain a 'full and complete' accusation as to the 'substance, nature or manner of the offense.'

And in State v. Houde (1955) 150 Me. 469, 471, 114 A.2d 366, where the charge was reckless driving (no homicide involved) we held that the indictment must allege the underlying facts 'from which the State will seek to prove the ultimate fact of reckless driving.' We recognized in Houde as one essential for the protection of the defendant, quoting from State v. Strout (1933) 132 Me. 134, 136, 167 A. 859, that 'a defense may not be rested upon the hypothesis of one thing, with the hazard of surprise by evidence, on the part of the government, of an entirely different thing.' Applying this rule to the instant case, the indictment gave the defendant no notice or warning that the government charged or would seek to prove that he was impaired or intoxicated as a result of his consumption of intoxicating liquor.

In State v. Child (1962) 158 Me. 242, 252, 182 A.2d 675 we treated as 'merely surplusage' language which 'neither added to nor detracted from the sufficiency of the indictment.' The same test was applied in State v. Vermette (1931) 130 Me. 387, 156 A. 807.

In State v. Mottram (1959) 155 Me. 394, 401, 156 A.2d 383 we adopted the language of the text in 27 Am.Jur. 679, Sec. 118 which in effect defined matters of substance as those which relate to the 'nature and grade of the offense charged.' The revised text now found in 41 Am.Jur.2d 994, Sec. 181, while recognizing that no rule has been generally accepted and applied, notes that there is support for the proposition that 'the statement of every fact which must be proved to make the act complained of a crime is a matter of substance, and that all else * * * is formal.' This was the theory underlying the decision in State v. Harvey (1928) 126 Me. 509, 140 A. 188 where the words 'at Belfast' were struck leaving as the remaining charge that the offense occurred in the County of Waldo. The Court said, 'It appearing, therefore, that the respondent was charged with having committed the offense within the county of Waldo, the State was not obliged under the indictment as drawn to prove it was committed at Belfast. * * * The words, 'at Belfast,' therefore may be treated as surplusage and a matter of form and not of substance.' So also in State v. Mayberry (1859) 48 Me. 218, 237 the Court was considering the effect upon a conspiracy indictment of a particular averment. It was then stated, 'The alleged sale to Lawrence is therefore wholly immaterial. It does not contradict any averment in the indictment; it is not descriptive of the identity of the charge, or of anything essential to it; nor does it in any degree tend to show that no offense was committed. It may be rejected, as it is a general rule that whenever an allegation may be wholly struck out of an indictment, without injury to the charge, it may be rejected as surplusage.' (Emphasis ours).

M.R.Crim.P., Rule 7(d) provides: 'The court on motion of the defendant may strike surplusage from the indictment or information.' Glassman, Maine Practice, Page 83, Commentary § 7.13 states:

'On motion of the defendant, under Rule 7(d), the court may strike surplusage from the indictment or information. While it has long been recognized that surplusage may be disregarded, unless it creates an ambiguity, this rule provides a protection for the defendant in that irrelevant, immaterial, or prejudicial allegations contained in the indictment or information may be stricken upon motion of the defendant. It also carries out the general purpose of the rules to assure that a criminal pleading be a short, simple, concise, and plain statement of the offense charged. It provides a means whereby a defendant can avoid the potential prejudicial effect of excessive but unnecessary allegations. While the rules provide no other means whereby an indictment may be amended, and thereby recognize the general principle that an indictment ordinarily may not be amended, by moving to have surplusage stricken from an indictment the defendant waives his right to prevent amendment of...