State v. Mann

• Decision Date: 09 July 1976
• Citation: 361 A.2d 897
• Parties: STATE of Maine v. Michael B. MANN.
• Court: Maine Supreme Court

Page 897

361 A.2d 897

STATE of Maine v. Michael B. MANN.

Supreme Judicial Court of Maine.

July 9, 1976.

David Q. Whittier, County Atty., South Paris, Thomas E. Delahanty II, Dist. Atty., John B. Cole, Asst. Dist. Atty., for plaintiff.

Michael J. O'Donnell, Bethel, for defendant.

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

DUFRESNE, Chief Justice.

Michael B. Mann, the defendant, was indicted by the Grand Jury in and for the County of Oxford at the May term, 1974, of the Superior Court for armed assault in violation of 17 M.R.S.A., § 201-A (count I), for breaking arrest in violation of 17 M.R.S.A., § 1405 (count II) and for carrying a concealed weapon in violation of 25 M.R.S.A., § 2031 (count III). Found guilty of armed assault ¹ as charged in the first count of the indictment at a jury-waived trial, Mann was sentenced to a term of not less than 2 years and not more than 4 years at the Maine State Prison. He appeals his conviction to this Court, raising several points of error. We deny the appeal.

I. Sufficiency of the indictment

The defendant contends the instant indictment is fatally defective on two grounds, 1) it fails to allege in the words of the statute that the defendant was 'armed' with a firearm, and 2) it omits the statutory language that the accused unlawfully attempted to strike, hit, touch or do any violence to another in a wanton, willful or angry or insulting manner having an intention and existing ability to do some violence to such person. Both contentions are devoid of merit.

I-A

The indictment charged the assault in the following manner:

'The Grand Jury Charges:

On or about the 26th day of April, 1974, in the Town of Mexico, County of Oxford, and State of Maine, Michael Mann did while carrying a firearm to wit, a revolver, unlawfully assault Frederick G. Tribou by pointing the said revolver directly at Frederick G. Tribou's head.' (Emphasis supplied)

Comparing the statutory provisions of 17 M.R.S.A., § 201-A with the language of the indictment, we understand the defendant's objection to be directed at the use of the expression 'while carrying a firearm' for the exact statutory wording of 'while armed with a firearm.' The validity of indictments, however, does not necessarily rest on whether the exact words of the statute appear, but rather on whether the necessary statutory elements of the crime charged are set forth with sufficient particularity and clarity. See Duncan v. State, 1962, 158 Me. 265, 183 A.2d 209, cert. denied 371 U.S. 867, 83 S.Ct. 129, 9 L.Ed.2d 104. It is sufficient in charging the commission of a statutory crime to use words which, if not the exact legislative terminology, are equivalent or more than their equivalents in meaning, provided they fully set forth the necessary elements of the statutory crime charged. See Moody v. Lovell, 1950, 145 Me. 328, 75 A.2d 795; State v. Thibodeau, 1976, Me., 353 A.2d 595.

As stated in State v. Lynch, 1895, 88 Me. 195, 33 A. 978, the statutory word 'armed' means furnished or equipped with weapons of offense or defense. Id. 198, 33 A. 978. In State v. Farmer, 1974, Me., 324 A.2d 739, we said that having in one's possession or control a real gun available for use, offensively or defensively, as a weapon adequately connotes the statutory meaning of 'armed with a firearm.' See Curl v. State, 1969, 40 Wis.2d 474, 162 N.W.2d 77, 84.

The expression 'while carrying a firearm' when used in the active transitive sense may connote transportation, but when used in the general sense of carrying weapons it rather denotes the concept of being armed with or wearing weapons. See People v. Smith, 1946, 72 Cal.App.2d Supp. 875, 164 P.2d 857.

The instant indictment was legally sufficient in charging the assault in terms of 'while carrying a firearm,' which expression is the equivalent of the statutory words 'while armed with a firearm.'

I-B

The defendant further contends that the failure of the indictment to describe the defendant's conduct in the express terms of the statute such as in a 'wanton, wilful, angry or insulting manner, having an intention and existing ability to do some violence' voids the indictment, because such allegation is necessary as a matter of substantive law legally to charge the statutory crime of assault armed with a firearm. In this, the defendant is in error.

Our assault statute has been interpreted as being merely declaratory of the common law and the mere use of the term assault necessarily implies the general descriptive conduct associated therewith in 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 commission when the accused is armed with a firearm in no way alters the statutory basic concept of the assault and battery itself. This Court's past interpretation of the assault and battery statute was background setting under which the armed assault statute was enacted and must be deemed integrated in the new statute by legislative adoption. See State v. Davenport, 1974, Me., 326 A.2d 1, at 6.

We have no hesitancy in reaffirming the doctrine that assaults may be charged in general terms and that it is not necessary to specify the conduct which will serve as proof thereof. Although 'intention to do some violence' is an essential element of the crime of assault (see Hutchins v. State, 1970, Me., 265 A.2d 706), the charge of assault vi termini is an implicit allegation of intentional conduct tending to violence.

As we said in State v. Worrey, 1974, Me., 322 A.2d 73, the statutory reference to 'intention to do some violence' does not mean that assault is a specific intent crime. The intent required to bring the actor's conduct within the scope of the assault statute is only the general intent to complete the act of an unlawful touching of the victim. See State v. Anania, 1975, Me., 340 A.2d 207; State v. Little, 1975, Me., 343 A.2d 180, 185.

Since the 'armed assault' statute (17 M.R.S.A., § 201-A) is identical to the 'plain' assault statute (17 M.R.S.A., § 201), neither proof nor allegation of a specific intention to do some violence to the victimized person is necessary in either instance. See State v. Westphal, 1975, Me., 349 A.2d 168, 170.

II. Trial errors

II-A. The defendant claims that he was not afforded sufficient time at trial to review the criminal record of the State's principal witness and, by reason thereof, was placed in a disadvantageous position resulting in substantial prejudice to him. It is true that the State, up to the time set for trial, had not responded to the defendant's request pursuant to Rule 16, M.R.Crim.P. seeking disclosure of Mr. Tribou's criminal record. However, upon learning this fact, the Court did suspend for three hours to permit the defendant's counsel to study and familiarize himself with the information which had then been furnished him by the prosecutor. The three hour recess was granted over the defendant's counsel's statement that he would be ready to proceed possibly in one half hour. After the recess trial was started without further protest. Failure of the defendant at that time to object and make known to the Court any further complaint he might have had in relation to the witness's criminal record must be viewed as trial strategy and will not be considered for the first time on appeal. State v. Rowe, 1968, Me., 238 A.2d 217, 225.

II-B. The defendant charges error in the Court's exclusion of three convictions which he sought to introduce into evidence to impeach the credibility of Mr. Tribou. These convictions dating back respectively to July 16, 1946, December 24, 1948 and April 27, 1949 relate to the crimes of assault, taking an automobile without the owner's permission and drunken driving or driving under the influence of intoxicating liquor. The Justice below, however, did not give as reason for excluding them the failure of any of the convictions to meet the time requirements for admissibility provided by 16 M.R.S.A., § 56. ² Notwithstanding the Court's stated justification for his ruling against admissibility might have been legally incorrect, his decision thereon was otherwise correct, since each conviction was outside the statutory time frame underlying admissibility. Indeed, the three convictions respectively took place more than 15 years prior to the instant trial and any incarceration period on account thereof would have terminated more than 10 years before trial.

If the court reaches a correct conclusion of law, the court's ruling as such being right as a matter of law, it is immaterial that an improper reason for the conclusion is given. Laferriere v. Paradis, 1972, Me., 293 A.2d 526, 529; A. E. Borden Co., Inc. v. Wurm, 1966, Me., 222 A.2d 150, 153; Hubert v. National Casualty Company, 1958, 154 Me. 94, 144 A.2d 119.

II-C. When the defendant rested his case, his counsel informed the Court that

'(w)e would at this time renew our motions (meaning motions for judgment of acquittal and for directed verdict on Count 1 of the indictment as made at the close of the evidence offered by the State).'

The State in turn rested and the Court stated:

'All right, the testimony is now closed.'

Addressing the defendant's counsel, the Court added:

'Now you may make your motion for the record.'

The defendant's counsel then made the following plea to the Court:

'At this time, your Honor, we do move the Court to dismiss Count 1 of the indictment on the basis that the State has failed to prove beyond a reasonable doubt that this defendant in any way, shape or form intended to assault Mr. Tribou or anyone else; that we certainly admit and do not in any way dispute the fact that defendant was present, Mr. Tribou was present, there was a confusing situation regarding the family disturbance, that the...