State v. Mahoney
| Decision Date | 23 April 1923 |
| Parties | STATE v. MAHONEY. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Waldo County, at Law.
Walter C. Mahoney was convicted of assault and brings exceptions. Exceptions overruled. Judgment for the state.
Argued before CORNISH, C. J., and PHILBROOK, DUNN, MORRILL, and DEASY, JJ.
Ralph I. Morse, of Belfast, for the State.
Daniel I. Gould and Clinton C. Stevens, both of Bangor, for respondent.
The respondent stands convicted of an assault after trial before a jury. After conviction he moved in arrest of judgment because of alleged insufficiency of the indictment, which was in these terms:
"That Walter C. Mahoney of Northport in said county of Waldo at Northport in said county of Waldo, on the thirteenth day of August in the year of our Lord one thousand nine hundred and twenty-two, on one Elizabeth Palson feloniously did make assault against the peace of the state," etc.
The objections set forth in the respondent's exceptions to the overruling of the motion are fourfold:
(1) Because the indictment does not contain any statement as to the nature of the acts or attempted acts, which the respondent is charged with committing.
(2) Because the indictment does not set forth the manner in which the acts were committed.
(3) Because "the indictment does not clearly, substantially and definitely set forth any actions, intentions or ability by or on the part of said respondent, nor any charge against him."
(4) Because the indictment does not charge any offense against the laws of the state.
In brief the respondent claims that an indictment merely charging the felonious making of an assault, without going into the details and reciting the elements of the crime, is insufficient, and cites as illustrations the supposed case of indictments for larceny, embezzlement, perjury, adultery, or obtaining goods by false pretenses, which simply name the offense charged.
With the respondent's contentions on these illustrations the counsel for the state agrees, but urges that in the case of an assault, which is an offense at common law and has a fixed and accepted meaning independent of statute, the charge of a felonious assault is sufficient in and of itself.
True, the Legislature has defined the crime of assault and provided the penalty therefor as follows:
"Whoever unlawfully attempts to strike, hit, touch, or do any violence to another however small, in a wanton, willful, angry or insulting manner, having an intention and existing ability to do some violence to such person, is guilty of an assault." R. S. c. 120, § 26.
But the word "assault" at common law contains and implies all those elements and it was unnecessary to allege them in this indictment. It would constitute redundancy, harmless but not essential.
In State v. Creighton, 98 Me. 424, 57 Atl. 592, the indictment alleged that—
The respondent "in and upon one Brinton H. Penwarden * * * an assault did make and him, the said Penwarden [etc.] did...
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Elliott v. State, 1831
... ... 366, 25 So ... 237; Payne v. State, 148 Ala. 609, 42 So. 988; ... Lovett v. State, 10 Ala.App. 72, 64 So. 643." See, also: ... State v. Graham, 120 S.C. 216, 112 S.E. 923; ... Reynolds v. State, 11 Tex. 120; Hussey v ... State, 144 Miss. 380, 109 So. 871; and State v ... Mahoney, 122 Me. 483, 120 A. 543 ... It ... follows from what has been said, that there was no error in ... overruling defendant's motion for a new trial, and the ... judgment of the District Court of Natrona County should be ... affirmed. We are not unmindful of the previous decision of ... ...
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State v. Mann
...the statute. The defendant's present contention was rejected in State v. Creighton, 1904, 98 Me. 424, 57 A. 592 and in State v. Mahoney, 1923, 122 Me. 483, 120 A. 543. The fact that the Legislature has expanded our assault and battery statute to provide enhanced punishment for its commissio......
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State v. Davenport
...and assault and battery may be charged in general terms without specifying the means by which the crime is committed. State v. Mahoney, 1923, 122 Me. 483, 120 A. 543. Aggravation, a term well understood at common law (see, State v. Bey, supra) may similarly be charged in general terms, with......
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State v. Blais
...State v. Mann, Me., 361 A.2d 897, 902 (1976); State v. Worrey, supra; State v. Rand, 156 Me. 81, 161 A.2d 852 (1960); State v. Mahoney, 122 Me. 483, 120 A. 543 (1923). At common law, an indictment or information charging an assault is sufficient even if the charging document does not allege......