State v. Melanson
| Decision Date | 15 October 1956 |
| Parties | STATE v. Guy MELANSON. |
| Court | Maine Supreme Court |
Gaston M. Dumais, Lewiston, for plaintiff.
Louis Scolnick, Lewiston, for defendant.
Before FELLOWS, C. J., WILLIAMSON, WEBBER, BELIVEAU and TAPLEY, JJ., and MURRAY, A. R. J.
This criminal case is before us on exceptions by the respondent to the sustaining of the State's demurrer to his special plea in bar. The issue is whether a speeding summons which fails correctly to set forth the statutory prima facie lawful speed constitutes a bar to prosecution of the alleged violation of statute.
The respondent is charged on a complaint originating in the Lewiston Municipal Court with the misdemeanor of driving a motor vehicle at a speed not careful and prudent. R.S. c. 22, § 113, I, II, II-C, and II-D. Specifically, the charge is that the respondent drove a motor vehicle at a speed of 55 miles an hour, it being then and there prima facie lawful to drive at a speed not exceeding 25 miles an hour.
In the Municipal Court a demurrer by the State to a special plea in bar, identical with the plea later made in Superior Court, was sustained and the respondent ordered to plead over. The respondent thereupon pleaded not guilty, waived hearing, and appealed from a finding of guilty.
On appeal in the Superior Court the respondent filed a special plea in bar alleging that the complaining witness, a police officer, gave him a summons or notice to appear in the Municipal Court which incorrectly stated the prima facie lawful speed at the time and place of the violation to be 55 miles an hour. The State demurred and the respondent joined therein. The presiding Justice made the following rulings and orders at the November Term 1955: In January 1956 the extended bill was filed and allowed and the case marked 'Law' on the docket. The respondent did not plead over in response to the order of the presiding Justice.
We are not here concerned with the plea attached to the respondent's appeal from the Municipal Court. In receiving and acting upon the special plea in bar the presiding Justice impliedly consented to the withdrawal of the 'not guilty' plea. State v. Schumacher, 149 Me. 298, 101 A.2d 196. Compare State v. McClay, 146 Me. 104, 116, 78 A.2d 347 and State v. Lawrence, 146 Me. 360, 82 A.2d 90.
The respondent's case rests upon the meaning of the portion of the statute reading:
Section 113, II, supra.
The critical words also the summons or notice to appear were first enacted in P.L.1939, c. 213, § 4. The remainder of the sentence may be traced to P.L.1929, c. 327, § 16(b).
The plea of the respondent is specially in bar, not in abatement. It is so entitled and so intended by him. In argument he urges that 'prosecution is forever barred.' State v. Demerritt, 149 Me. 380, 103 A.2d 106.
We have no difficulty in construing the provision for a statement of prima facie lawful speed in a summons or notice to be directory and not mandatory. The purpose and intent of the Legislature to give the alleged violator notice of speed and the speed limit is apparent. It does not follow, however, that the Legislature intended that error by the officer should vitiate the proceedings.
The language of the statute does not compel such a strange result. Violators are not to go free for such an unsubstantial reason, nor do they obtain from such an error by an officer an 'immunity bath', to use a phrase from State v. Boynton, 143 Me. 313, 322, 62 A.2d 182, 188.
We may test the correctness of our conclusion by examining possible harm to a respondent from an error in the summons. The summons does not take the place of a complaint properly drawn and issued. At most, the respondent in the instant case was misled until he read the complaint setting forth correctly the prima facie lawful speed. We may readily consider that in such a situation a court would give the respondent ample time to prepare his defense. What more could he fairly ask?
The respondent does not question the sufficiency of the complaint. The complaint is the indispensable charge of the crime. Jurisdiction was not lost by a mistake of the officer in issuing the summons or notice to appear in court. The exceptions must be overruled. State v. Boynton, supra.
The respondent's plea was a dilatory plea. State v. Boynton, supra; State v. Thompson, 143 Me. 326, 62 A.2d 190. In sustaining the demurrer thereto the Court in substance overruled the plea. The statute reads, 'When a dilatory plea is overruled ane exceptions taken, the court shall proceed and close the trial, and the action shall then be continued and marked 'law' * * *.' R.S. c. 106, § 19.
The respondent confronted with the adverse ruling did not exercise his right to plead over. He chose instead to bring forward his exceptions without trial, and to submit his cause for final determination on the strength of his special plea.
The case is governed by the rule stated in State v. Inness, 53 Me. 536, 541, in which the respondent pleaded specially a former conviction, the Court said:
'* * * having entered his action in this Court, which he could not rightfully do unless it was in a condition to be finally disposed of if his exceptions should be overruled, his right, if any, to answer further, must be regarded as waived.'
See also State v. Cohen, 125 Me. 457, 134 A. 627 and State v. Jellison, 104 Me. 281, 71 A. 716.
The entry will be
Exceptions overruled; judgment for State.
CLARKE, A. R. J., did not sit.
I concur fully in the opinion of the court. I note that in the dissenting opinion there is no suggestion that State v. Inness, 53 Me. 536, has been overruled and no effort is made to distinguish it from the case at bar. I am satisfied that it controls the situation now before us. There, as here, the State filed a demurrer to a dilatory plea in bar. There, as here, the demurrer was sustained and the respondent took exceptions. There, as here, there was a proper order to plead over which was ignored by the respondent. There, as here, there was no adjudication of guilt or imposition of sentence by the court below. Yet the mandate in Inness was . I take the latter portion of the mandate to be directory to the court below and pursuant to that mandate the respondent was to be adjudged guilty without further hearing, and sentenced. This summary action logically follows the waiver by the respondent of his right to plead over and have trial upon the merits as Inness clearly indicates.
The opinion in Stowell v. Hooper, 121 Me. 152, 116 A. 256, relied upon in the dissenting opinion, makes it clear that Inness is distinguished rather than overruled. The distinguishing feature emphasized by Stowell was the failure of the court in that case to order the party offering the dilatory plea to plead over. The court said 121 Me. at page 154, 116 A. at page 257: (Emphasis supplied.) The opinion reasons that the error being that of the court rather than of the party, the party cannot thereby be charged with waiver. However, the court recognized that waiver can and does arise from failure to respond to the order to plead over, but pointed out that it does not arise from the mere taking of exceptions. Whether Stowell is in all its aspects well reasoned is not in issue here. The important consideration is that it does not alter the rule in Inness and leaves Inness controlling of the situation which must here be decided.
The majority opinion in this case, which we shall hereafter refer to as the opinion, has decided it upon the merits. With its contention that it has jurisdiction to do so we cannot concur.
Our contention is that the case is not in this Court legally, therefore, not here at all, and all that this Court can do is dismiss it from the docket for want of jurisdiction.
Following is the record of the lower Court:
1955 No. T 2 Defendant's plea filed. State's demurrer to plea fild. Respondent's joinder filed. Demurrer to plea sustained. Respondent to plead over.
1955 Nov. T 8--Extended bill of exceptions to be filed on or before Jan. 10/56.
1956 Jan. T 6--Extended bill of exceptions filed and allowed.
8--Law Court notified. Law
The record does not show that evidence was filed before case was marked law. Rule 19 A. Nor does it show that respondent pleaded over. It does not show that the case was closed. It does not show a finding of guilty. It does not show judgment, that is the sentence.
R.S.1954, Chap. 106, Sec. 19. 'When a dilatory plea is overruled and exceptions taken, the court shall proceed and close the trial, and the action shall then be continued and marked 'law".
The opinion appears to admit that this statute must be complied with by saying:
'The respondent confronted with the adverse ruling did not exercise his right to plead over. He chose instead to bring forward his exceptions without trial, and to submit his cause for final determination on the strength of his special plea. He cites as authority '* * * Having entered his action in this court,...
To continue reading
Request your trial
-
State v. Howe
...2d. Criminal Law § 468. Rulings upon pleas in abatement were exceptionable. State v. Allen, 91 Me. 258, 263, 39 A. 994, State v. Melanson, 152 Me. 168, 126 A.2d 278; 15 M.R.S.A. § 1203, since repealed. 4 No point is made that the plea, as a plea in abatement, was oral, or that it was unveri......
-
City of Mercer Island v. Crouch, 2546--I
...because an admittedly valid complaint had been filed. See also Solt v. People, 130 Colo. 1, 272 P.2d 638 (1954); State v. Melanson, 152 Me. 168, 126 A.2d 278 (1956); Fisher, Traffic Complaints, Traffic Dig. & Rev. 18--20 (Feb., (U)ntil a court acquires jurisdiction of a case through the fil......
-
State v. Clark
...1265(5). The use of the word "shall," however, does not make the seven-day requirement jurisdictional in nature. See State v. Melanson, 152 Me. 168, 126 A.2d 278, 280 (1956). Section 1265(2) does not provide for any consequence if the seven-day period is exceeded and does not allow a prison......
-
State v. Sylmor-Slosberg, SYLMOR-SLOSBERG
...charging her with violating section 7801(1) was in fact timely filed in the District Court. As we said in State v. Melanson, 152 Me. 168, 171, 126 A.2d 278, 280 (1956), "The complaint is the indispensable charge of the crime." (Emphasis in original) The only case cited by appellant in suppo......