State v. Michaud

• Decision Date: 22 April 1955
• Citation: 114 A.2d 352,150 Me. 479
• Parties: STATE of Maine v. Irma MICHAUD (two cases).
• Court: Maine Supreme Court

Page 352

114 A.2d 352

150 Me. 479

STATE of Maine v. Irma MICHAUD (two cases).

Supreme Judicial Court of Maine.

April 22, 1955.

Edward J. Beauchamp, County Atty., Irving Isaacson, Lewiston, for appellant.

Israel Alpren, Berman & Berman, Lewiston, for appellee.

Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER and TAPLEY, JJ.

FELLOWS, Chief Justice.

This record contains two cases of State v. Irma Michaud, and consists of two indictments, to each of which indictments the respondent filed a special demurrer. In each case the Justice presiding at the January term of the Superior Court for Androscoggin County overruled the demurrer, and in each case the respondent comes before the Law Court on exceptions to the Court's ruling. The two cases come forward in the one printed record.

First Case

This indictment (Law Court Docket #53, Superior Court Docket #5081) called on the Superior Court docket 'Misprision' of felony, alleges in the charging part as follows:

'That Irma Michaud, of Lewiston in the County of Androscoggin on July 11, 1953 at Lewiston, having knowledge of the actual commission of a felony cognizable by the courts of this state in that the said Irma Michaud knowing that one Simonne Lauze of said Lewiston had on July 4, 1953 at said Lewiston feloniously committed the crime of adultery with one Gerard Houle of Brunswick by then and there having carnal knowledge of the body of the said Gerard Houle (the said Simonne Lauze being then and there a married woman and having a lawful husband alive other than the said Gerard Houle) and the said Simonne Lauze and said Gerard Houle not then and there being lawfully married to each other, all of which being then and there known to the said Irma Michaud, the said Irma Michaud did feloniously, fraudulently and wilfully conceal and did not as soon as possible make known the commission of the said crime of adultery as aforesaid to some one of the judges having jurisdiction of such offenses or some officer charged with the enforcement of the criminal laws of the state, with intent thereby to hinder the due course of justice and to cause the aforesaid Simonne Lauze to escape unpunished.'

To this indictment the respondent filed a special demurrer, claiming, among many other things, that the indictment failed to disclose what the knowledge of the respondent was or how the knowledge was obtained, and that there was no allegation showing how or in what manner there was a concealment. In brief, that the indictment does not allege sufficient facts to constitute a crime under the laws of Maine.

The indictment was apparently brought under Revised Statutes 1944, Chapter 122, Section 12, now Revised Statutes 1954, Chapter 135, Section 12, which reads as follows:

'Whoever, having knowledge of the actual commission of a felony cognizable by courts of this state, conceals or does not as soon as possible disclose and make known the same to some one of the judges or some officer charged with enforcement of criminal laws of the state shall be punished by a fine of not more than $500 or by imprisonment for not more than 3 years, or by both such fine and imprisonment.'

A defendant has a constitutional right to know the nature and the cause of the accusation against him. The necessary facts must be stated with certainty. The description of the criminal offense charged in the indictment must be full and complete. An indictment must charge a crime either under the statute or at common law. It should charge a statutory offense in the words of the statute or equivalent language within the meaning of the words of the statute. If the statute does not sufficiently set out the facts that make the crime, a more definite statement of facts is necessary. The want of a direct allegation of anything material in the description of the substance, nature, or manner of the offense cannot be supplied by intendment or implication. State v. Doran, 99 Me. 329, 59 A. 440; State v. Strout, 132 Me. 134, 136, 167 A. 859; State v. Lashus, 79 Me. 541, 11 A. 604; State v. Rowell, 147 Me. 131, 84 A.2d 140; State v. Paul, 69 Me. 215; State v. Rudman, 126 Me. 177, 136 A. 817; State v. Mahoney, 115 Me. 251, 256, 98 A. 750; State v. Dumais, 137 Me. 95, 15 A.2d 289; State v. Beattie, 129 Me. 229, 151 A. 427; State v. Navarro, 131 Me. 345, 163 A. 103; Smith v. State, 145 Me. 313, 75 A.2d 538; State v. Papalos, 150 Me. 46, 113 A.2d 624; State v. Maine State Fair Ass'n, 148 Me. 486, 96 A.2d 229.

The statute requires 'knowledge of the actual commission of a felony'. It must be actual and personal knowledge. It must not be knowledge from hearsay, or from possibilities or probabilities. It must be first hand knowledge by the respondent of all facts necessary to know that the alleged felony has been committed. The indictment in this case alleges knowledge of the crime of adultery on July 11, 1953, that occurred on July 4, 1953, but there is no allegation of the facts to indicate how the respondent knew. Allegations of conclusion are not enough. It is 'vague and indefinite.' State v. Doran, 99 Me. 329, 59 A. 440.

The State argues that 'knowledge' is a matter of proof and that the allegation of facts to constitute a felony and the further allegation 'all of which being then and there known' is sufficient, for whatever she knew she 'did * * * conceal and did not * * * make known.' This presents a question that has, so far as we can ascertain, never before been presented in this State. The indictment does not indicate what the knowledge was or how obtained. The indictment does not state what the concealment was and does not state how or in what manner the respondent concealed the commission of the felony. How did she have, or obtain actual personal knowledge on July 11, 1953 of a felony committed on July 4, 1953 and how did she conceal it? For these reasons we think the indictment is faulty, and that the demurrer should have been sustained.

The crime early known as 'misprision of a felony,' has been but little discussed in text books, and few cases have considered statutes similar to our own. It is clearly indicated, however, that a mere omission to disclose knowledge of the commission of a felony, without positive concealment, is not enough.

The ancient Federal Statute of 1790, from which our statute was evidently taken, was 'conceals and does not as soon as possible disclose.' The Maine statute uses the word conceals or 'does not * * * disclose'. The crime is to conceal and not disclose, because disclosure is not concealment. The Maine statute should be interpreted, as the State has attempted to plead it, that is, in the conjunctive. 'And' and 'or' are convertible. W. S. Libby Co. v. Johnson, 148 Me. 410, 94 A.2d 907, 910. The terms are not contradictory. State v. Cushing, 137 Me. 112, 15 A.2d 740; State v. Willis, 78 Me. 70, 2 A. 848.

In Commonwealth v. Lopes, 318 Mass. 453, 61 N.E.2d 849, 851, the opinion states 'Except when based upon statute, American cases recognizing the offense of misprision of felony are hard to find. * * * A Federal statute, first enacted in 1790, provides that 'whoever having knowledge of the actual commission of the crime of murder or other felony cognizable by the courts of the United States, conceals and does not as soon as may be disclose and make known the same to some one of the judges or other persons in civil or military authority under the United States' shall be punished. Cr.Code, § 146, 18 U.S.C.A. § 251. Under this statute, mere omission to disclose without positive concealment, is not enough.' Commonwealth v. Lopes, 318 Mass. 453, 61 N.E.2d 849; Bratton v. U. S., 10 Cir., 73 F.2d 795. See also People v. Lefkovitz, 294 Mich. 263, 293 N.W. 642.

The Court holds in the Bratton case, supra, that serious constitutional questions may arise under a statute which could impose penalties for mere knowledge and silence. Chief Justice Marshall once said that a law punishing the mere failure to proclaim every offence that comes to one's knowledge 'is too harsh for man,' Marbury v. Brooks, 7 Wheat 556, 575, 576, 5 L.Ed. 522.

We hold that there must be allegations of complete actual knowledge of all necessary facts, and of positive concealment. The act of concealment must be alleged. Otherwise, a person could be tried and erroneously convicted on slight evidence that was only to the effect that he was in the vicinity of where a felony was 'actually' committed, and from that improperly argue that he must have 'known,' and that he concealed because he knew and did 'not disclose.' He might not have seen. He might not have known or understood all the facts. The exceptions to the overruling of the demurrer in the first case must be sustained.

Second Case

This indictment (Law Court Docket #54--Superior Court Docket #5082) is for attempting to 'procure,' and the allegations in the first count of the indictment are that the respondent Irma Michaud 'did feloniously and willfully attempt to induce, persuade, encourage, inveigle, and entice one Blanche Gagnon of said Lewiston, a female person, to become a prostitute by offering to procure for and furnish to the said Blanche Gagnon men who would pay the said Blanche Gagnon for her engaging in sexual intercourse with them.'

The second count alleges that the respondent 'did solicit and attempt to procure one Blanche Gagnon of Lewiston, a female person for the purpose of prostitution by offering to procure for and furnish to the said Blanche Gagnon men who would pay the said Blanche Gagnon for her engaging in sexual intercourse with them.'

A special demurrer was filed to the indictment 'in both and each counts' on the ground of duplicity, that it was indefinite, uncertain, and that it does not inform the respondent of what the respondent should know in order to defend. The right to plead anew was reserved by the respondent and granted by the Court. The presiding Justice overruled the demurrer. The respondent filed exceptions.

There...