State v. Leeman

• Decision Date: 08 June 1972
• Citation: 291 A.2d 709
• Parties: STATE of Maine v. Richard E. LEEMAN.
• Court: Maine Supreme Court

Page 709

291 A.2d 709

STATE of Maine v. Richard E. LEEMAN.

Supreme Judicial Court of Maine.

June 8, 1972.

Alan C. Pease, County Atty., Wiscasset, for plaintiff.

Daniel G. Lilley, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

This is an appeal from a jury verdict finding the Defendant guilty of Death Caused by Violation of Law (29 M.R.S.A. § 1316). The indictment charged Reckless Homicide (29 M.R.S.A. § 1315). The Presiding Justice had instructed the jury that the offense of Death caused by Violation of Law was a lesser offense necessarily included within the greater offense of Reckless Homicide and the sole issue raised by the Defendant is whether this instruction was error.

The indictment read:

'That on or about the twenty-first day of December, 1969, in the town of Boothbay Harbor, County of Lincoln and State of Maine, the above named defendant, Richard E. Leeman, operated a motor vehicle with reckless disregard for the safety of others, in that said defendant operated said motor vehicle at an excessive rate of speed taking into consideration the nature of the road the immediate neighborhood and the speed limit signs, and, at the junction of Route #27 and Lakeside Drive and McKown Point Road, in said Boothbay Harbor, did operate said motor vehicle on Route #27 in the direction of the Town of Southport, and at said intersection did operate said motor vehicle across the center line of said highway into the lane provided for oncoming traffic, and there crashed into a motor vehicle being operated on Route #27 towards Boothbay Harbor and driven by One Marguerite J. Karlstrom, and thereby caused the death of Bard Karlstrom, who was a passenger in the motor vehicle driven by Marguerite J. Karlstrom, within one year.'

The principle that a charge of a lesser offense may be included in an indictment for a greater offense has long been recognized in the decisional law of this State. State v. Waters, 39 Me. 54 (1854); Carson, Petitioner, 141 Me. 132, 39 A.2d 756 (1944); State v. Barnette, 158 Me. 117, 119, 179 A.2d 800, 801 (1962); Wilson v. State, Me., 268 A.2d 484 (1970).

The Maine Legislature long ago saw fit to adopt, and still retains, the principle of this common law rule. 15 M.R.S.A. § 6 reads:

'When a person, indicted for an offense, is acquitted of a part by verdict of the jury and found guilty of the residue thereof, such verdict may be received and recorded by the court. He may be considered as convicted of the offense, if any, which is substantially charged by such residue, and be punished accordingly, although such offense would not otherwise be within the jurisdiction of said court.'

M.R.Crim.P., Rule 31(c) reads in part:

'The defendant may be found guilty of an offense necessarily included in the offense charged . . .'

While contrary authority is found in the decisions from several jurisdictions, ¹ the general rule of law permits a conviction of a lesser offense than that charged only if the lesser, as legally defined, is necessarily a constituent part of the greater, as legally defined. ² This legal principle is operative even though the indictment for the greater does not include a specific allegation of the lesser, as in a conviction for assault upon an indictment charging rape. ³ We are satisfied that our own decisions have followed the majority view which our own Rule 31(c) has adopted ⁴ and that it is the better reasoned rule. The test of whether or not a lesser offense is 'necessarily included' in a greater is clearly and concisely expressed by Professor Orfield in his comment on Federal Criminal Rule 31(c), the language of which was adopted in our own Rule 31(c).

'To be necessarily included in the greater offense, the lesser offense must be such that it is impossible to commit the greater without having committed the lesser.' ⁵

The two offenses which are involved in the case at bar are both statutory offenses.

The Reckless Homicide statute, 29 M.R.S.A. § 1315, states that

'Any person who operates a vehicle with reckless disregard for the safety of others and thereby causes the death of another person, when the death of such person results within one year, shall be guilty of the offense of reckless homicide. . . .'

Title 29 M.R.S.A. § 1316, governing the law of Death Caused by Violation of Law, provides that

'Any person who operates a motor vehicle in violation of law, other than a violation of section 1315, and said violation is the proximate cause of the death of another person, when the death of such person results within one year, shall be guilty of a criminal offense. . . .'

It will be seen that the offense of Death by Violation of Law is based upon the violation of another, unspecified statute. Because of the unique nature of section 1316 we cannot ascertain the legal elements which make up the offense of Death by Violation of Law until we know from the indictment which violation of the many motor vehicle laws the State alleges to have resulted in death.

The following comment by Professor Wharton seems to point up the singular nature of the present charge:

'If the greater of the two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.' ⁶ (Emphasis added.)

This same thought is expressed by the Circuit Court of Appeals for the First Circuit in Waker v. United States, (1st Cir., 1965) 344 F.2d 795:

'The lesser offense must not require some additional element not needed to constitute the greater offense.'

Our legislative scheme for promoting highway safety includes many statutes concerned with the operation of motor vehicles. One of these statutes, 29 M.R.S.A. § 1314, reads:

'No person shall drive any vehicle upon a way in such a manner as to endanger any person or property.'

It appears logically necessary that every reckless operation of a motor vehicle which results in a person's death under such circumstances as to constitute a violation of section 1315 (Reckless Homicide) must have been of such a nature as to have endangered, earlier, the safety of the victim. To state this reasoning...