State v. Thayer
| Decision Date | 21 September 1971 |
| Citation | 281 A.2d 315 |
| Parties | STATE of Maine v. Leslie THAYER. |
| Court | Maine Supreme Court |
Joseph E. Brennan, County Atty., Portland, for plaintiff.
David C. Pomeroy, Portland, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.
The Defendant was indicted and convicted of high and aggravated assault and battery in violation of 17 M.R.S.A. § 201, 1 from which conviction he appealed. The appeal raises a single issue, namely: In determining whether an assault and battery is of a high and aggravated nature, is evidence of an intent to commit a felony a proper consideration for the fact finder, particularly in view of 17 M.R.S.A. § 202? 2
To reach the issue here involved in view of the facts of this case, it is necessary to review the history of our Assault and Battery Statute as well as the history of 17 M.R.S.A. § 202.
On March 15, 1821, the first Maine Legislature approved an act which provided for a penalty of not more than $5.00 for 'all assaults and batteries that are not of a high and aggravated nature.' Laws of Me., (1821) ch. LXXVI, § 1. In the same year and prior to the above enactment assaults with intent to murder and maim (ch. II, § 5) and rape (ch. III, §§ 3 and 4) had been prohibited. On March 19, 1821, assault with intent to steal was made a criminal act (ch. VII, § 2).
In the 1841 revision, ch. 154, §§ 33 and 34, assault and battery was defined in nearly the same language as is now found in 17 M.R.S.A. § 201 but the offense was then considered a misdemeanor, and declaratory of the common law. Rell v. State (1939), 136 Me. 322, 9 A.2d 129.
By Chapter 82, P.L. of 1871, assault and battery was made a felony by giving the Court discretionary authority to punish by imprisonment in the Maine State Prison. It retained this provision until 1933 when the Legislature distinguished between types of assault and battery by restricting the power of sentencing for nonaggravated assaults and batteries to the county jails. P.L.1933, ch. 92, § 6. This is now expressed in 17 M.R.S.A. § 201 (see n. 1).
R.S. 1841, ch. 154 § 31 proscribed the following conduct:
'If any person shall assault another with intent to commit any felony or crime, punishable with imprisonment in the state prison, where the punishment for such assault is not otherwise herein before prescribed, the shall be punished by imprisonment in the state prison, not more than five years, or by fine, not exceeding five hundred dollars, and by imprisonment in the county jail not more than one year.' (Emphasis added.)
§§ 29 and 30 of this act prohibited assaults with intent to murder, kill, maim, rob, steal, commit arson and commit burglary. We construe the 1841 Act as authorizing an indictment for assault with intent to commit felonies other than those described in §§ 29 and 30. This statute has remained in effect in essentially the same form ever since and is now found in 17 M.R.S.A. § 202.
In defining the words 'high and aggravated' to the Jury, the Presiding Justice used these words:
* * *'
No objections were noted to the instructions as required by M.R.Crim.P., Rule 30(b) but the Defendant seeks to invoke the exceptions stated in State v. Smith (1944), 140 Me. 255, 37 A.2d 246, and recently cited with approval in State v. Simpson (Me. 1971), 276 A.2d 292. Was this instruction, then, a highly prejudicial error in law or was it so plainly wrong and the point involved so vital that the verdict must have been based upon a misconception of the law?
The following excerpts from the testimony of the victim of the assault are factually descriptive of the episode and bring the issue into focus:
'Q What took place after he stopped you?
A As I say, he locked his arm around me; then he asked me for a quarter; and as-I yanked my arms away from him and I said, 'Get out of her.'
Q Then what did he do?
A When I said that, he just poked me in the face. I went out on to High Street.
Q Then what happened?
A Then I came back on to the sidewalk again.
Q What did he do next, if anything?
A He says: 'Let me have what-.' He says: 'Let me have what money you've got.'
Q What did you do then?
A I reached in my pocket and gave him what change I had.
Q How much was it, do you know?
A Oh, around 75 or 80 cents; no bills at all.
Q Then what took place?
A When I passed him the change, then he hit me again in the side.
Q What did he use to hit you in the side with?
A Just his fist.'
A bystander was an eye witness to these events and his testimony was in essential agreement with that of the victim. The Defendant did not elect to testify, nor was any other evidence offered by the defense.
The Defendant then made an appropriate motion to reduce the charge contained in the indictment to one of simple assault and battery, leaving the commission of the reduced crime to the Jury. In denying the motion the Justice made this statement:
* * *'
It is apparent that Maine has had a prohibition since 1841 against assaults with intent to commit specific felonies and a prohibition against an assault to commit any felony not otherwise specified, coexistent with the Assault and Battery Statute. Maine classified assault and battery as a felony for nearly one hundred years, and the history discloses that the Legislature gave the sentencing Justice discretion over the sentence to be imposed on all assaults and batteries between 1872 and 1933 when, as we have shown, the authority to punish by imprisonment in the Maine State Prison was restricted to those assaults and batteries of a high and aggravated nature. During this period the Legislature retained the various statutes prohibiting assaults with intent to commit specific crimes as well as the general statute which is now 17 M.R.S.A. § 202.
Assaults have been traditionally included in the more serious offense of assault with intent to kill and murder; State v. Henry (1904), 98 Me. 561, 57 A. 891; State...
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