State v. Leavitt

• Decision Date: 13 December 1894
• Parties: STATE v. LEAVITT.
• Court: Maine Supreme Court

32 A. 787

87 Me. 72

STATE

v. LEAVITT.

Supreme Judicial Court of Maine.

Dec. 13, 1894.

(Official.)

Exceptions from supreme judicial court, Somerset county.

Israel D. Leavitt, having been convicted of assault with intent to kill, brings exceptions. Exceptions overruled.

On exceptions.

The indictment upon which the defendant was tried in this case sufficiently appears in the opinion of the court. After the jury had returned a special verdict of "Guilty of assault with intent to kill," the defendant filed a motion in arrest of judgment for the following reasons and grounds appearing upon the face of the indictment: (1) The first count in said indictment charges three separate offenses in the same count, whereas by law but one offense can be charged in one count. (2) The second count contains no legal and sufficient allegation of the time when said supposed offense was committed. This motion was overruled by the court, and the defendant took exceptions.

The defendant also took exceptions to the exclusion of evidence, the bill of exceptions disclosing the following case:

The indictment charged the defendant with an assault with a dangerous weapon, to wit, a jackknife, upon one Warren Spaulding, with intent to murder, maim, and kill.

The government introduced evidence tending to show that the defendant, while riding along the highway in Harmony in his road wagon, about 3 o'clock in the morning of August 20, 1893, passed by the house occupied by Eenoice Spaulding and said Warren Spaulding, who are brothers.

The Spauldings testified that, when the defendant saw them, he stopped his horse, and said, "Come here"; that thereupon said Warren Spaulding went close up to the wagon, and that the defendant stabbed him with a jackknife; that, during the time required to make these stabs, the said Warren Spaulding offered no violence towards the defendant, and did not retreat from the wagon.

The defendant testified that he was riding by the house occupied by the Spauldings, and, when he got nearly opposite the house in the highway, the two Spauldings suddenly appeared; thereupon said Benoice Spaulding seized his horse by the bits, and directed Warren to take him out of the carriage; that the moment Benoice seized the horse by the bits, he took his jackknife out of his pocket, and opened it, and that it was the only means of defense he had; that Warren Spaulding came to the wagon, and undertook to pull him out; that his horse was restive, and he held the reins in his left hand, and, when Warren Spaulding undertook to pull him out of the wagon, he struck at him with the knife, to defend himself, and had no other means of defense; that said Warren Spaulding made several attempts to pull him out of his wagon; that he defended himself the best he could, and made the cuts on said Warren Spaulding in trying to prevent being pulled out of the wagon, and had no other intent or object than to defend himself.

It appeared that the defendant was arrested after dinner on the day of the trial, and brought from Athens to the courthouse (a distance of 10 miles or more), and put on trial the same afternoon and immediately after his arrival; that his counsel applied for delay till the next morning, in order to procure the attendance of witnesses to show that the Spauldings gave a different account of the matter the next day after it took place; or very soon after, and had admitted that Benoice seized the horse by the bits.

The state closed at 6 o'clock, and court adjourned until morning; and after the defendant, who was the only witness in defense, had closed his testimony on the second day of the trial, his counsel again asked for a postponement until these outside witnesses could be obtained. This was denied by the court.

The county attorney then recalled the defendant, and cross-examined him as follows:

"Ques. Have you made any talk that these Spauldings had made different statements about this? Ans. I made no talk about it, only as other parties have told me that they have made different statements.

"Ques. Other parties have told you that they made different statements about it? Ans. Yes, sir.

"Ques. They have not made any different statements to you? Ans. No, sir; I have never spoken to them since."

The defendant's counsel then asked the defendant to state the whole of the conversation about which the county attorney had inquired, and claimed the right to have the statements as to what the Spauldings had said submitted to the jury, under the peculiar circumstances of the case, and offered to show that in the conversation between other parties and the defendant, about which the county attorney had inquired of the defendant, they informed him that Benoice Spaulding had stated that he took the horse by the bit,—a fact which said Spaulding had denied on the stand.

The court refused to admit the testimony, and the defendant excepted to such exclusion.

Frank W. Hovey, Co. Atty., for the State.

D. D. Stewart, for defendant.

HASKELL, J. Indictment containing two counts. The first count charges that the defendant "an assault did make, and him, the said Warren Spaulding, did beat, bruise, and ill treat, with a dangerous weapon, to wit, a knife which said [defendant] then and there held, with intent him, the said Warren Spaulding, to murder, maim, and kill, against the peace," etc. The second count charges assault and battery. The verdict was: "Guilty of assault with intent to kill."

1. It is objected in arrest that the second count does not support the verdict, and that no Judgment can be rendered upon it under that count. As the case now stands, this objection is well taken, a nolle prosequi of the intent to kill not having been entered.

2. It is objected that judgment cannot be entered on the verdict under the first count, because it charges three distinct substantive crimes. If this were so, and the verdict had been general,—that is, guilty of the indictment—the objection would have been well taken. Com. v. Symonds, 2 Mass. 163; State v. Nelson, 8 N. H. 163; People v. Wright, 9 Wend. 193; Com. v. Holmes, 119 Mass. 195; State v. Smith, 61 Me. 386.

A few cases are cited as holding that duplicity is cured even by a general verdict of guilty. They go upon the authority of Com. v. Tuck, 20 Pick. 361, now disregarded in Massachusetts, if that be its doctrine. Among these are State v. Palmer, 35 Me. 13, and State v. Dolan, 69 Me. 573, where the point is not given much consideration. Duplicity is cured, however, by a special verdict of guilty of one offense only. State v. Payson, 37 Me. 361.

As remotely bearing upon the subject, see State v. Burke, 38 Me. 574; State v. Hadlock, 43 Me. 282; State v. Tibbetts, 86 Me. 189, 29 Atl. 979.

A distinction must be made between charging several substantive offenses in the same count, and charging several acts that collectively constitute one offense, but separately constitute several lesser offenses that are included in the greater offense; as assault, assault with intent to kill, and intent to murder. In the former case the count would be defective for duplicity,—a cause for demurrer, or for arresting judgment on a general verdict of guilty, as it might be doubtful what sentence should be imposed. Nor should inconsistent acts be charged, either of which would constitute the offense. State v. Haskell, 76 Me. 399.

If, however, the defendant waives his demurrer, and goes to trial upon a count bad for duplicity, and the verdict be special, as the statute provides it may be (Rev. St. c. 131, § 4), the defect should be held cured. What good reason can be given why it should not be? The defendant stands convicted of a single offense upon a sufficient indictment therefor. Why should he complain of other charges of which he is acquitted? What prejudice have they worked him? We are aware of the dictum in State v. Smith, 61 Me. 386. The considerations there were on demurrer, and the defendant was threatened with trial upon double charges in the same count. He had reason to object His right of trial upon a single issue was likely to be denied him. But where a defendant waives the objection by going to trial, and the trial is so conducted that he is found guilty of but one offense, the matter has worked itself clear. The penalty to be imposed becomes certain, and he can be subjected to no greater penalty than he would have been had the charge been single.

But it is urged in the case at bar that the verdict is responsive to only one charge in the first count, and silent as to the others, and therefore not such a verdict as authorized by our statute, and upon which no judgment can be rendered. But the verdict, in effect, is responsive to the whole indictment, as its legal effect is an acquittal of the part not specifically responded to. So says the court in State v. Payson, supra: "When a person indicted for an offense shall, by verdict of a jury, be acquitted of a part of it, and found guilty of the residue, he is, by the provisions of the statute [now Rev. St. c. 131, § 4], to be considered as convicted of the offense, if any, which is substantially charged by the residue, of which he is found guilty. The verdict in this case, as presented, does not contain any formal words of acquittal of a part of the offense, yet such is its legal effect; for, when the verdict of a jury finds the accused guilty of a certain part of the offense only, the effect is an acquittal of everything else charged. The legal effect of the verdict, and not the language used in it, must have been intended by the provisions of the statute, for such verdicts are, in the customary course of business, presented orally, and not in writing." In that case the indictment was said to charge two "substantive offenses in one count, and the verdict was guilty of one offense,...