State v. Warner

• Decision Date: 26 December 1967
• Parties: STATE of Maine v. Melvin F. WARNER.
• Court: Maine Supreme Court

Page 150

237 A.2d 150

STATE of Maine v. Melvin F. WARNER.

Supreme Judicial Court of Maine.

Dec. 26, 1967.

Foahd J. Saliem, County Atty., Augusta, for plaintiffs.

Julius B. Levine, Waterville, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.

WEATHERBEE, Justice.

On appeal from conviction by the jury upon a charge of reckless homicide in violation of 29 M.R.S.A. § 1315. The pertinent part of this section reads as follows:

'Any person who operates a vehicle with reckless disregard for the safety of others and thereby causes the death of another person, when the death of such person results within one year, shall be guilty of the offense of reckless homicide.'

In the early morning of January 1, 1966, the victim, Emma Charity, while crossing College Avenue in Waterville with two other women, was struck and killed by an automobile which the state alleges was operated by the defendant. The defendant was arrested a few minutes later in Fairfield, in Somerset County, on a charge of operating while under the influence of intoxicating liquor which charge is still pending. An indictment against him charging reckless homicide was seasonably returned by the Grand Jury of Kennebec County and a jury trial took place on March 22 to 25, 1966, on which latter date the defendant was found guilty.

Pending trial the defendant filed motions for discovery dated February 4, 1966; a motion for return of seized property and suppression of evidence dated Frbruary 10, 1966; a motion for bill of particulars dated February 16, 1966; a motion to strike surplusage from the indictment and to enjoin prosecution in another county dated February 28, 1966, (the driving under the influence charge in Somerset County); a motion to dismiss the indictment dated February 28, 1966; a motion for disclosure of matters before the Grand Jury dated March 22, 1966; and a motion for advence ruling on alleged admissions or confessions dated March 18, 1966. These motions were seasonably considered, a record was made and they were ruled upon. An appeal was taken by the defendant and twenty-eight points on appeal were reserved by the defendant.

Defendant's points on appeal will be stated and considered in order. Several of the points on appeal were not briefed and will be considered to have been waived.

Point No. 1. 'The court erred in denying motion of defendant-appellant to dismiss the indictment.'

On February 28, 1966, the defendant had moved to dismiss the indictment and the presiding justice after hearing denied his motion. At that time the defendant urged six grounds for dismissal of the indictment, several of which appear to have been abandoned by the defendant. Ground 3 alleged that the indictment did not state facts sufficient to constitute an offense against the State of Maine. Although it does not appear to have been argued by the defendant below, he now urges this Court to hold that the indictment was fatally defective because there was no specific allegation that the death of the victim resulted within one year. The pertinent part of the indictment reads as follows:

'THE GRAND JURY CHARGES: That Melvin F. Warner of St. Albans in the County of Somerset and State of Maine, on the first day of January, A.D.1966, at Waterville in the County of Kennebec and State of Maine, did operate a motor vehicle with reckless disregard for the safety of others and did thereby cause the death of one Emma Charity of Fairfield, in said County of Somerset, in that he, the said Melvin F. Warner, did, on the first day of January, A. D. 1966, operate a motor vehicle, to wit, an automobile, on College Avenue, in Waterville in the County of Kennebec and State of Maine, at an excessive rate of speed in a reckless fashion with regard to the road conditions then existing, to wit, after sunset and before sunrise and fog in the atmosphere, and did then and there fail to keep a proper lookout and did then and there fail to see the person of said Emma Charity who was then and there crossing said College Avenue in said Waterville in a lawful fashion, and he, the said Melvin F. Warner, was then and there under the influence of intoxicating liquor, as a result thereof did strike the said Emma Charity with the said motor vehicle, in a violent and forceful manner, as a result of which accident caused the death of the said Emma Charity.'

Unquestionably the statute requires that the State allege, as well as prove, that the victim's death resulted within one year from the date of the striking. The defendant was charged with a statutory offense and Rule 7(c) of the Rules of Criminal Procedure provides that:

'* * * The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * *'

While this Rule 'is designed to simplify criminal pleading', Section 7.3 Maine Practice, Glassman, it does not alleviate responsibility for charging every element of the offense, a requirement of long standing.

'When the statute both creates and defines an offense not known to the common law, the * * * indictment must, of course, follow the statute * * *.' Section 21, Directions and Forms for Criminal Procedure, Whitehouse and Hill; State v. Munsey, 114 Me. 408, 410, 96 A. 729 (1916); Smith, Petitioner v. State of Maine, 145 Me. 313, 318, 75 A.2d 538 (1950).

Careful criminal pleading would result in the use of a precise allegation of this element of the alleged crime such as the words 'and thereby caused the death of Richard Roe within one year' as is suggested in M.R.Crim.P. Form 5, language expressly declared to be sufficient by Rule 58.

It is the right of the defendant, as guaranteed by the Constitution of Maine, Art. 1, Sec. 6, 'to demand the nature and cause of the accusation.' We have defined the standard of sufficiency of explanation in this manner: of reasonable and normal intelligence, of reasonable and normal intelligence, would, by the language of the indictment, be adequately informed of the crime charged and the nature thereof in order to be able to defend and, if convicted, make use of the conviction as a basis of a plea of former jeopardy, should the occasion arise.' State v. Charette, 159 Me. 124, 127, 188 A.2d 898, 900 (1963).

Applying the standard to this case, would the defendant here be adequately informed that the State was charging that his operation of his vehicle with reckless disregard for the safety of others not only caused the death of Emma Charity but also that her death occurred within one year? As to this latter element of the crime, the indictment, after alleging that the defendant struck the victim with his automobile on January 1, 1966, adds only 'as a result of which accident caused the death of the said Emma Charity.' The date of Emma Charity's death is not alleged nor is it specifically alleged that her death occurred within one year of January 1, 1966. However, the indictment was returned on February 2, 1966, and bears that date and its language unmistakably informs the defendant that the state charges that on February 2, 1966, Emma Charity was dead, and that she died at some time between the time of the accident and the time of the returning of the indictment, which is obviously less than one year.

This language is an inartistic equivalent of the words 'and that her death resulted within one year.'

The question had been presented to courts of several other jurisdictions which have held that when an indictment alleges an act which caused death and is returned within the period limited by the statute, it necessarily follows that death occurred within the period, and it adequately informs a defendant as to this essential element of the crime.

'But, in any event, the phraseology criticised is not material, for the information informs the accused that the mortal wounds from which Lottie Brace died were inflicted on the 5th day of November, 1902, and the information is dated on the 8th day of November, 1902, three days after. So that it must necessarily follow that the death occurred within three days from the infliction of the wounds. The information, in all respects, seems to be sufficient to sustain the judgment.' State v. Champoux, 33 Wash. 339, 74 P. 557, 559 (1903).

'In the instant case it appears from the record that the indictment was returned within a year and a day of the commission of the assault upon the deceased, and of course it appears from the indictment that at the time of its return he was then dead; it therefore appears from the record that the assault was perpetrated less than a year and a day before the death of the deceased.' Alderson v. State, 196 Ind. 22, 145 N.E. 572, 574 (1924).

For cases reaching the same result see Milburn v. Commonwealth, 223 Ky. 188, 3 S.W.2d 204, 205 (1928); State v. Caviness, 40 Idaho 500, 235 P. 890, 891 (1925); Brassfield v. State, 55 Ark. 556, 18 S.W. 1040, 1041 (1892); People v. Corder, 306 I11. 264, 137 N.E. 845, 849 (1922).

No other conclusion could result from the reading of the reference indictment by a defendant of reasonable and normal intelligence than that the State was charging that Emma Charity's death had resulted at some point between the date when the state charged he struck her and the date the indictment was returned, only a little more than a month later. If the defendant wished to know the precise date the State claimed she died, he could have included a request for this information in the bill of particulars which he filed. Furthermore, the indictment states the facts alleged with sufficient definiteness to form the basis for a plea of double jeopardy. The indictment is sufficient, in this respect.

Point No. 1-Ground 5.

This Ground urges that the indictment is fatally defective bacause of vagueness in that it describes the place of the alleged offense only as 'on College Avenue in Waterville, in the County of Kennebec and State of Maine.'

The defendant relies...