State v. Rogers

• Decision Date: 16 June 1953
• Citation: 149 Me. 32,98 A.2d 655
• Parties: STATE v. ROGERS.
• Court: Maine Supreme Court

Page 655

98 A.2d 655

149 Me. 32

STATE v. ROGERS.

Supreme Judicial Court of Maine.

June 16, 1953.

William H. Niehoff, Asst. Atty. Gen., for plaintiff.

Frank M. Coffin, Lewiston, for defendant.

Before MERRILL, C. J., and THAXTER, FELLOWS, NULTY, WILLIAMSON, and TIRRELL, JJ.

TIRRELL, Justice.

The respondent was indicted for perjury alleged to have been committed by her in testimony given before the Grand Jury in Kennebec County.

The case is before this Court on exceptions by the respondent and by appeal from the refusal of the presiding justice to grant a new trial.

The pertinent allegations of the indictment are, that the respondent

'appeared as a witness in a proceeding before the Grand Jury in and for the County of Kennebec, then and there engaged in hearing testimony relative to the commission of crime in said County of Kennebec * * * the said Helena Rogers then and there committed the crime of perjury by testifying as follows * * * that she never was acquainted with Joe Lindsay and had never met Joe Lindsay at any time; when in truth and in fact the said Helena Rogers had met the said Joe Lindsay and was acquainted with said Joe Lindsay; all of which the said Helena Rogers then and there well knew and which testimony was material to the issue and inquiry then and there pending. * * *'

To this indictment the respondent filed a general demurrer asking for the right to plead anew, if the demurrer was overruled. The right to plead anew was granted by the justice presiding, and the demurrer was overruled; the respondent excepted to this ruling. This is Exception 1.

A demurrer to an indictment admits all facts well pleaded. This rule needs no citation of authority. If the demurrer is overruled judgment is for the State unless the right to plead over was reserved by the respondent and leave therefor granted by the court. State v. Cole, 112 Me. 56, 90 A. 709; State v. Munsey, 114 Me. 408 at page 411, 96 A. 729.

Upon the filing of a demurrer it is the duty of the court to render judgment thereon. The decision of the Justice at nisi prius is final and conclusive upon the demurrer unless exceptions are taken to his ruling. Exceptions to the overruling of a demurrer, under our practice, go forward immediately to the Law Court for determination. If the exceptions be overruled, judgment is final on the demurrer, and since a demurrer admits the truth of all facts well pleaded judgment is for the State. When, however, the right to plead over has been reserved and granted at nisi prius, as aforesaid, if exceptions to overruling of the demurrer are overruled, the judgment of the Law Court is, 'Exceptions and demurrer overruled. Respondent is entitled to plead anew.' State v. Snow, 132 Me. 321, 170 A. 62, 63.

Exceptions, however, may be waived or abandoned by conduct inconsistent with their further prosecution. A plea to the merits and trial thereon is inconsistent with a demurrer and waives the same. True v. Plumley, 36 Me. 466. If exceptions are taken to the overruling of a demurrer, the demurrant by proceeding to trial upon the merits before bringing the exceptions forward to the Law Court waives the exceptions. Gilbert v. Cushman, 113 Me. 525, 95 A. 201.

These cases are well sustained by the authorities. See 8 Encyc. Pl. & Prac. 211; 49 C.J. 447, sec. 554; 71 C.J.S., Pleading, § 263, p. 540; Webb, Receiver v. Smith, 6 Colo. 365; Freas v. Engelbrecht, 3 Colo. 377; Stanbury v. Kerr, 6 Colo. 28; Nye v. Wright, 3 Ill. 222; Grier v. Gibson, 36 Ill. 521; Hull v. Johnston, 90 Ill. 604; Ashton v. Detroit City Ry. Co., 78 Mich. 587, 44 N.W. 141; West v. McMullen, 112 Mo. 405, 20 S.W. 628; Francisco v. Benepe, 6 Mont. 243, 11 P. 637; Pottinger v. Garrison, 3 Neb. 221.

Upon waiver or abandonment of exceptions to the overruling of a demurrer to an indictment, judgment on the demurrer becomes final and unless the right to plead over has been granted, judgment is entered for the State.

The fact that the respondent reserved and was granted the right to plead anew if the demurrer was overruled does not change the procedure with respect to the carrying forward of exceptions to the Law Court. The exercise of that privilege prior to the carrying of the exceptions forward to the Law Court waives the exceptions.

In announcing the foregoing conclusion we are not unmindful of the case of State v. Pike, 65 Me. 111. In that case the defendant was indicted for manslaughter. He first pleaded in abatement and then after his plea in abatement had been adjudged bad on demurrer, he pleaded further that he was not guilty. The presiding justice declined to allow exceptions to the ruling upon the plea in abatement upon the ground that by pleading over the defendant had waived his right to except. In holding that he had not waived his right to except by pleading over this Court called specific attention to the fact that when a plea in abatement is adjudged bad on demurrer the judgment is always respondeat ouster; that by pleading over the defendant did no more than obey the mandate of the court. We further stated that to hold that he had waived his right to except would be equivalent to holding that in such case a defendant can never except. This exception to the rule that by going to trial upon the merits exceptions to the overruling of a demurrer to a dilatory plea are not waived was also recognized in Gilbert v. Cushman, supra. In this connection, it is to be remembered that by R.S. c. 94, sec. 19, it is provided: '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', subject to the provisions of section 14.' This statute applies not only to civil but to criminal cases. State v. Jellison, 104 Me. 281, 71 A. 716. We hold that the respondent by going to trial on the merits of the case before bringing her exceptions to the overruling of the demurrer forward to this court waived the same.

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