State v. Smith

• Citation: 277 A.2d 481
• Parties: STATE of Maine v. Kenneth SMITH.
• Decision Date: 21 May 1971
• Court: Supreme Judicial Court of Maine (US)

Page 481

277 A.2d 481

STATE of Maine v. Kenneth SMITH.

Supreme Judicial Court of Maine.

May 21, 1971.

Michael Westcott, County, Atty., Wiscasset, for plaintiff.

Hart & Stinson, Bath, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE and POMEROY, JJ.

DUFRESNE, Chief Justice.

The defendant Kenneth E. Smith was convicted by jury of the crime of burglary at the November term, 1969, in Lincoln County Superior Court. He raises several points of error. The appeal is denied.

DUPLICITY.

Defendant before trial, by motion under Rule 12(b)(1), M.R.Crim.P., objected to the indictment on the ground that it was duplicitous. He claims the indictment charges him with assault in addition to the offense of burglary under 17 M.R.S.A. § 751.

Our burglary statute, 17 M.R.S.A. § 751, reads as follows:

'Whoever breaks and enters in the nighttime with intent to commit a felony or any larceny or, having entered with such intent, breaks in the nighttime a dwelling house, any person being then lawfully therein, is guilty of burglary. Whether he is, before or after entering, armed with a dangerous weapon, or whether he assaults any person lawfully therein or has any confederate present aiding or abetting or not, in either case he shall be punished by imprisonment for any term of years. * * *.'

The indictment charges that

'On or about the 20th day of March, 1969, in the Town of Damariscotta, County of Lincoln, and State of Maine, the above named defendant, Kenneth E. Smith, did break and enter in the nighttime the dwelling house of * * * (L.D.), the said * * * (L.D.) being then lawfully therein, with the intent to commit a felony to wit, rape, and the said Kenneth E. Smith, after he entered said dwelling house, assaulted the said * * * (L.D.).'

It is a well established rule of criminal pleading that two or more substantive offenses may not be joined in the same count of an indictment. The underlying reason for the rule is that a person accused of crime has a constitutional right to know from the face of the criminal pleading the exact offense charged against him and each count of an indictment, information or complaint should present only a single issue which, if sustained, subjects the accused to specific punishment readily ascertainable by him.

Even though duplicity is not a defect of substance but one of form only, the rule barring duplicity is important both to the accused and the public. By restricting any single count of an accusation to only one substantive offense, the rule affords the accused the necessary safeguard against any embarrassement which a proliferation of charges would cause him in the preparation of his defense. On the other hand, the public is better assured of the purity of the jury trial process when, by reason of the rule, the jury's attention may not be distracted into a consideration of a variety of issues. See, State v. Morton, 1946, 142 Me. 254, 49 A.2d 907. But, when several acts relate to the same transaction and together constitute but one offense, they may be charged in the same count. State v. Shannon, 1939, 136 Me. 127, 3 A.2d 899.

Our Court in State v. Neddo, 1898, 92 Me. 71, 42 A. 253, said that an indictment charging breaking and entering and larceny in a certain sense sets out two substantive offenses; nevertheless it was held in that case that an indictment so framed was not open to the objection of duplicity. The Court viewed it as an exception to the general rule and a practice of long standing in England and in this country. To the same effect, Commonwealth v. Tuck, 1838, Mass., 20 Pick. 356; State v. Brady, 1842, 14 Vt. 353; State v. Squires, 1840, 11 N.H. 37; Butler v. The Commonwealth, 1885, 81 Va. 159; Stoops v. Commonwealth, 1822, Pa., 7 Serg. & R. 491, 10 Am.Dec. 482.

Our Court, however, has never specifically decided whether an indictment for burglary under 17 M.R.S.A. § 751 is subject to the objection of duplicity when as in the instant case it charges the breaking and entering of a dwelling house in the nighttime with intent to commit the felonious crime of rape and further alleges the actual commission not of the intended rape, but of the lesser offense of assault.

At one time in the history of 17 M.R.S.A. § 751, if the burglary of a dwelling house with a person lawfully therein was committed by a person armed with a dangerous weapon or aided and abetted by a confederate, or if the burglar after entry assaulted the person lawfully therein, the statute provided life imprisonment as the sole penalty for the burglarious breach of the dwelling house accompanied by such aggravating circumstances. But, in the absence of these conditions of aggravation, then the punishment for the stated offense of burglary could either be imprisonment for life or for any term of years. See, Revised Statutes of Maine, 1871, c. 119, s. 7. In 1872, the Legislature amended the above mentioned statute by providing that '(i)n all cases of burglary and rape the court may sentence for life or for a term of years.' (Emphasis supplied). P.L.1872, c. 12. Thus, the statutory aggravating circumstances of the 1871 law became meaningless as statutory controls over the punishment to be meted out for burglary and rape. In the 1883 consolidation, the Legislature set out to reflect the 1872 amendment of the law. Instead of deleting from the burglary statute the previously penalty-controlling aggravating circumstances, it retained the form of the statute but indicated in positive terms that in either case, (1) whether the burglary of a dwelling house with a person lawfully therein was accompanied by any of the aggravating circumstances such as with dangerous weapons or confederates or involved an assault upon the occupant thereof, or (2) whether none of these aggravating conditions were present, the punishment for this statutory offense of burglary was the same, either imprisonment for life or for any term of years. See, Revised Statutes, 1883, c. 119, s. 7. Imprisonment for life was dropped in 1903. See, Revised Statutes, 1903, c. 120, s. 7.

Our present statute, 17 M.R.S.A. § 751, is substantially in the same format as the 1883 version. The only change was made by Public Laws, 1947, c. 167, § 1 when the Legislature brought within the crime of burglary the breaking and entering of the dwelling house with intent to commit any larceny. Whether, by retaining in the statutory definition of burglary the enumerated statutory circumstances oftentimes present when homes are burglarized but no further necessary to support an enhanced penalty, the Legislature attempted to give approval in charging burglary to a criminal practice which allowed a recital of the surrounding circumstances including, in addition to the intent to commit a particular felony, the statement that the intended felony or an assault on a person lawfully in the dwelling house had actually been committed, need not be decided in the instant case.

The indictment, by alleging the commission of an assault upon L. D., a person lawfully in the dwelling house at the time of the burglary, did not necessarily charge a separate substantive offense. True, there is no compound offense in Maine of burglary and committing rape or assault after entry, as is the case under 17 M.R.S.A. § 2103 of breaking, entering and larceny. Nevertheless, a necessary element of the crime of burglary is that the breaking and entering be done with the intent to commit a felony, in the instant case, rape. That being so, the indictment must allege the felonious purpose and the additional assertion that an assault was committed on a person lawfully in the dwelling house served only to indicate that the breaking and entering was made with intent to rape. The assault could be proven even if the indictment merely charged the breaking and entering with intent to commit rape. The averment of the assault serves only to characterize and verify the felonious intent to rape with which the accused broke and entered. The crime charged was burglary and the defendant was tried for that crime only. The instructions were tailored upon that theory and the jury was specifically cautioned that the defendant was charged only with the crime of burglary and no other. The Justice below instructed the jury:

'Now in this case it is immaterial whether or not rape was in fact committed on * * * (L.D.). It is immaterial whether or not in fact an attempt to rape * * * (L.D.) took place so far as the commission of any offense. These matters are only important, and you should only consider them in the light of whether or not it establishes to you that there was an intent on the part of the individual who broke and entered into this dwelling at the time he entered to commit the crime of rape. So you will consider what happened there only in relation to whether or not it establishes an intent on the part of the individual to commit the felony upon the inside.'

The objection of duplicity is not meritorious. See, State v. Johnston, 1896, 119 N.C. 883, 26 S.E. 163; State v. Ryan, 1888, 15 Or. 572, 16 P. 417; State v. Phipps, 1895, 95 Iowa 487, 64 N.W. 410; Farris v. Commonwealth, 1890, 90 Ky. 637, 14 S.W. 681, 12 Ky.Law.Rep. 592.

DENIAL OF MOTION TO SUPPRESS.

The defendant filed with the Court below a motion under Rule 41(e), M.R.Crim.P. for the return of certain itemized personal property and for its suppression for use as evidence on the ground that the property was unlawfully seized and taken from him on the night of March 22, 1969 while he was occupying a room at the Oasis Hotel in Rockland, Maine. Smith claims the warrantless seizure cannot be justified as an incident to a lawful arrest, asserting the warrant of arrest to have been issued on a legally deficient affidavit. He advances at the same time the argument that, independently of the arrest warrant, the arresting officer did not have probable cause that the crime of rape had been committed and that the defendant was the party who had...