State v. Harvey
| Decision Date | 18 January 1928 |
| Citation | 140 A. 188 |
| Parties | STATE v. HARVEY. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Waldo County, at Law.
Walter Harvey was charged with unlawful possession of a certain still for purpose of manufacturing intoxicating liquor. To the allowance of an amendment to the indictment, defendant excepts. Exceptions overruled. Judgment for the State.
Argued before WILSON, C. J., and PHILBROOK, BARNES, BASSETT, and PATTAN GALL, JJ.
Clyde R. Chapman, Co. Atty., of Belfast, for the State.
Arthur Ritchie, of Belfast, for respondent.
The respondent was indicted by the grand jury of Waldo county under an indictment setting forth in the margin, as is customary in this state, the name of the county, to wit, "Waldo ss." and alleging in terms:
"That Walter Harvey of Waldo in the county of Waldo at Belfast in said county of Waldo on the twelfth day of August in the year of our Lord one thousand nine hundred and twenty-seven * * * unlawfully did have in his possession a certain still for the purpose of manufacturing intoxicating liquors," etc.
To the indictment, the respondent pleaded not guilty, but before trial, counsel for the state having learned that the crime charged was committed within the town of Waldo instead of the city of Belfast as alleged, moved to amend by striking out the words "at Belfast," leaving merely the allegation that it was committed in the county of Waldo.
To the allowance of the amendment the respondent excepted, and the case is before this court on his bill of exceptions.
While it is necessary to allege a definite place of the commission of every offense for the purpose of showing the offense is within the jurisdiction of the court, it is sufficient to allege it was committed within the county where the court has county-wide jurisdiction, unless the locus of the offense is an essential part of the crime. Bishop's Crim. Pro. vol. 1, §§ 370, 371; 14 R. C. L. 181; 31 C. J. 677, § 203; Ency. Pl. & Pr. vol. 10, p. 520, par. XIV; State v. Roberts, 26 Me. 263; State v. Mahoney, 115 Me. 251, 98 A. 750; State v. Cotton, 24 N. H. 143.
Nor is it necessary when a particular town or place is alleged, where it appears that the offense was committed within the jurisdiction of the court, to prove the place as alleged. State v. Sobel, 124 Me. 35, 125 A. 258; State v. Mahoney, supra; Com. v. Tolliver, 8 Gray (Mass.) 386, 69 Am. Dec. 252.
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. State v. Sobel, supra. The words "at Belfast," therefore, may be treated as surplusage and a matter of form and not of substance. Ency. Pl. & Pr. vol. 10, p. 530, par. XVI; State v. Mayberry, 48 Me. 237; State v. Arnold, 50 Vt. 731, 735.
The indictment was not within the constitutional provision requiring it to be found by a grand jury; the offense charged not being of the grade therein designated as infamous. Not only was the amendment permissible at any...
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State v. Grant
...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. T......
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State v. Rowell
...Turnbull, 78 Me. 392, 6 A. 1.' We are not concerned with a formal allegation of time which need not be proved as laid. See State v. Harvey, 126 Me. 509, 140 A. 188. It is obvious that the time of day in the case at bar forms an essential part of the offense. Hunting on November twenty-third......
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