State v. Vermette

Decision Date16 October 1931
Citation156 A. 807
PartiesSTATE v. VERMETTE et al.
CourtMaine Supreme Court

Count, in substance, alleged that defendants feloniously conspired and agreed together with "fraudulent and wicked intent for one or more of them to manufacture intoxicating liquor, other than cider, to wit, alcohol, in the state of Maine."

In such case, judgment and sentence will be considered as given in accordance with offense laid and proved in valid counts.

Exceptions from Superior Court, Oxford County.

Onesime Vermette and Tony Lumbarti were convicted of conspiracy. Their motions in arrest of judgment were overruled, and they bring exceptions.

Exceptions overruled, and judgment rendered for the State on the first count of the indictment.

Argued before PATTANGALL, C. J., and DUNN, BARNES, FARRINGTON, and THAXTER, JJ.

E. Walker Abbott, of South Paris, for plaintiff.

Albert Beliveau, of Rumford, for defendants.

STURGIS, J.

The respondents in this case were found guilty in the court below of conspiracy, and exceptions to the overruling of their motions in arrest of judgment bring the case to this court.

In the first count of the indictment, it is alleged that the respondents did "feloniously conspire and agree together with the fraudulent and wicked intent for one or more of them to manufacture intoxicating liquor, other than cider, to wit, alcohol, in the State of Maine, in violation of law to one or more of the others and to other persons, against the peace of said State and contrary to the form of the statute in such case made and provided." This is not statutory conspiracy, within the purview of sections 26 and 27 of chapter 138 of the Revised Statutes. As an indictment under the statute, the count is fatally defective. State v. Clary, 64 Me. 369.

It is elementary law, however, that the combination of two or more persons by concerted action to commit a crime, whether it be of the grade of a felony or only of a misdemeanor, and whether the crime be an offense at common law or by statute, is a conspiracy at common law, which is an indictable offense in this state, recognized and made punishable by the conspiracy statute. The state contends that conspiracy at common law is well pleaded in the first count.

The manufacture of intoxicating liquor, other than cider, to wit, alcohol, is a crime of the grade of a misdemeanor under it. S. c. 137, § 1. The first count of the indictment sets out a conspiracy to commit this offense with sufficient certainty to fully inform the respondents of the charge laid against them. The inclusion of the superfluous and meaningless expression, "in violation of law to one or more of the others and to other persons," does not contradict any necessary averment, nor is it descriptive of the identity of the charge, or anything essential to it. It may be rejected under the general rule that, whenever an allegation may be struck out of the indictment without injury to the charge, it may be treated as surplusage. State v. Mayberry, 48 Me. 218; State v. Whitten, 90 Me. 53, 37 A. 331; State v. Whitehouse, 95 Me. 179, 49 A. 869; Com. v. Randall, 4 Gray (Mass.) 36; Com. v. Wright, 166 Mass. 174, 44 N. E. 129; 1 Bish. Crim. Proa, § 478 et seq. The conclusion, "contrary to...

To continue reading

Request your trial
6 cases
  • State v. Grant
    • United States
    • Maine Supreme Court
    • 10 Junio 1970
    ...language which 'neither added to nor detracted from the sufficiency of the indictment.' The same test was applied in State v. Vermette (1931) 130 Me. 387, 156 A. 807. In State v. Mottram (1959) 155 Me. 394, 401, 156 A.2d 383 we adopted the language of the text in 27 Am.Jur. 679, Sec. 118 wh......
  • Berger v. State
    • United States
    • Maine Supreme Court
    • 8 Octubre 1951
    ...must be distinctly set out.' State v. Mayberry, 48 Me. 218, 235; State v. Trocchio, 121 Me. 368, 375, 117 A. 460; State v. Vermette, 130 Me. 387, 156 A. 807. It is not sufficient to say against the peace of the State and 'contrary to the form of the statute'. State v. Schwarzschild, 83 Me. ......
  • State v. Mihill
    • United States
    • Maine Supreme Court
    • 31 Enero 1973
    ...allegation may be struck out of the indictment without injury to the charge, it may be treated as surplusage.' State v. Vermette, 130 Me. 387, 388-389, 156 A. 807, 808 (1931). See Martin v. State, 249 A.2d 871 (Me.1969). Furthermore, the appellant has demonstrated no prejudice resulting fro......
  • State v. Pooler. State
    • United States
    • Maine Supreme Court
    • 21 Julio 1945
    ...be of the grade of a felony or only of a misdemeanor, is an indictable offense made punishable by the conspiracy statute. State v. Vermette, 130 Me. 387, 156 A. 807. The next contention is that the language of the lottery statute is all-inclusive as to participants in lotteries as it provid......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT