State v. Small
| Decision Date | 11 February 1960 |
| Citation | 157 A.2d 874,156 Me. 10 |
| Parties | STATE of Maine v. Fred T. SMALL. |
| Court | Maine Supreme Court |
James Blenn Perkins, County Atty., Boothbay Harbor, for plaintiff.
Basil Latty, Portland, David Klickstein, Brunswick, for defendant.
Before WILLIAMSON, C. J., and WEBBER, SULLIVAN, DUBORD and SIDDALL, JJ.
On Exceptions. The respondent was indicted for breaking, entering, and larceny in the nighttime and was found guilty after a jury trial in the Superior Court for the County of Lincoln. The indictment contained three counts. One count alleged a prior conviction of robbery against the respondent. The jury returned a verdict of guilty on all counts.
The respondent duly filed a motion in arrest of judgment based upon the following grounds:
(1) That the indictment did not sufficiently charge an offense against the respondent under the Constitution and Laws of the State of Maine.
(2) That the indictment did not allege that the property taken was owned by anybody or by any legal entity.
(3) That the indictment did not allege any proprietary interest in anybody, or any legal entity in the property alleged to be taken.
(4) That the indictment did not allege that the property taken was not the property of the respondent.
The motion was overruled by the presiding Justice, and respondent filed exceptions.
As a part of its proof of the prior conviction and sentence, the State offered in evidence a copy of the record of the conviction and sentence in the Cumberland County Superior Court of one Fred T. Small for the crime of robbery, such copy being signed and attested by the Clerk of such court and under its seal. Counsel for the respondent objected to the admission of this document on the ground that it was not the best evidence and that it was hearsay. The document was admitted de bene subject to further testimony being presented identifying the Fred T. Small named therein as the respondent in the instant case. The respondent filed exceptions to the admission of this document.
The respondent was sentenced under the provisions of R.S.1954, Chap. 149, Sec. 3, which authorizes an increased sentence upon conviction of a felony in those cases in which conviction and sentence to a state prison for a prior offense have been alleged and proved.
We consider first the respondent's motion. The respondent was indicted for breaking, entering, and larceny. The indictment alleged that the respondent broke and entered the schoolhouse of the Boothbay-Boothbay Harbor Community School District and stole therefrom certain personal property 'in the custody of Clifford H. Buck, Principal of the Boothbay Region High School, who was then and there holding said property for the beneficiaries of the Boothbay Region High School Activities Fund.' The first and second counts contained identical language except in one count the building which allegedly was broken into was described as a building in which valuable things were kept, and in the other count as a building for public use.
Under our statutory definition of larceny the personsl property alleged to have been stolen must have been 'the property of another.' R.S.1954, Chap. 132, Sec. 1. Our statute in this respect follows the common law definition of larceny.
The issue raised by the respondent's motion is whether or not the allegations in the indictment as quoted above are sufficient allegations of ownership in another of the property which was the subject matter of the alleged larceny.
It is a fundamental principle of criminal procedure that an indictment must contain a direct allegation of every essential element of the crime charged.
An essential element of the crime charged in this case is that the property alleged to have been stolen was the property of one other than the respondent. This element must be alleged and proved. The name of the owner if known must be set forth in the indictment. State v. Davidson, 119 Me. 146, 109 A. 593; State v. Bartlett, 55 Me. 200; State v. Polland, 53 Me. 124; State v. McAloon, 40 Me. 133; McKee v. State, 200 Ga. 563, 37 S.E.2d 700; State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849; Nickles v. State, 86 Ga.App. 290, 71 S.E.2d 578; Pownall v. People, 135 Colo. 325, 311 P.2d 714. For a general discussion of the same principle see Wharton's Criminal Law (12th Ed.) Sec. 1222; 52 C.J.S. Larceny § 80; 32 Am.Jur., Larceny, Sec. 113.
The purposes of the requirement of an allegation of ownership in larceny indictments are to inform the respondent of the exact nature of the crime charged and to enable him to defend himself against a subsequent prosecution, and also to negative ownership in the respondent.
Ownership of the property taken, when unknown, may be alleged to be in persons unknown. See State v. Davidson, supra; State v. Polland, supra. However, 'if it appears from the evidence in the case that the name of the owner was in fact known to the grand jury, the respondent should be discharged, subject to be tried on a new indictment adapted to the facts in the case.' State v. Davidson, supra. [119 Me. 146, 109 A. 594.]
Although every indictment for larceny must allege an ownership of the property taken, there are no particular words which the law requires to be used. Words must be used that convey clearly the idea that certain persons named are the owners of the property taken. State v. Bartlett, supra. In that case it was held sufficient to allege that the property taken was 'of the goods and chattels of' several persons named therein. Likewise in State v. Leavitt, 66 Me. 440, cited in respondent's brief, the term 'of the goods and chattels' of a named person was held to be a sufficient allegation of ownership. In State v. Polland, supra, also cited in respondent's brief, it was claimed that the owner of the property stolen was not stated in a complaint which alleged the larceny to have been of 'one sheep of the value of five dollars, the property of another person, who is unknown to your complainant.' The court held the complaint sufficient. In each of these cases the words used clearly indicated ownership of the property taken in a person or persons named, or in persons unknown. On the other hand, in State v. McAloon, supra, in which the validity of an indictment for receiving stolen property was an issue, that part of the indictment which set forth the larceny by the principal contained an allegation that the property taken was 'in the possession of' a named person. The court held it to be necessary to allege and prove the ownership of the property stolen, or that the principal had been convicted, and that the indictment did not contain either allegation.
The respondent's counsel also cites in his brief the case of State v. Somerville, 21 Me. 14. In that case the indictment read 'of the goods, chattels, books and property of one Zabdiel Hyde, then and there in the possession of one William Hyde.' The indictment clearly set forth ownership in the property, and the issue was whether the proof supported the allegations of ownership. The court held 'that proof that the person alleged to be the owner had a special property in the goods taken was sufficient to support the allegations of ownership in the indictment.' Likewise, in the case of State v. Pettis, 63 Me. 124, also cited by the respondent, the complaint alleged the taking of certain property 'of the goods, chattels, and property' of a named person. The court held that the allegation of property was sustained if the person named held possession of them under a loan from or contract of sale with the owner. In State v. Jutras, 154 Me. 198, 144 A.2d 865, also cited by respondent, the court merely decided that proof of bailment was sufficient evidence of ownership. The complaint in that case is not set forth in the opinion. The record, however, shows that the complaint alleged the articles taken to be the 'property of Joseph Taylor.' In each of the above cases the process clearly indicated that the persons named therein were the owners of the property taken, or that the the owners were unknown, and the question of the sufficiency of the allegation of ownership was not an issue. The issue before the court in each case was whether the proof of ownership followed the allegation. It may be noted...
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