State v. Bean

| Me. | Aug 28, 1885

Peters, C. J.

In a single count the defendant was charged with burning a dwelling house and a barn. An objection was interposed, before the jury was impaneled to try the case, that the indictment was bad for duplicity. Thereupon, the prosecuting officer, with leave of court, but against the defendant’s consent, entered a nolle prosequi to so much of the indictment as charged the burning of the barn. The defendant’s counsel denies the right of dividing a count by entering a discontinuance to a part of it.

It was held in State v. Burke, 38 Maine, 574, that a nolle prosequi may be entered as to any part of a count whereby the charge is made less criminal. We think it may be entered, at proper time, to the whole indictment, or to any count or counts in it, or to any person or persons named in it, or to any part of a count. Such has been the common practice in our courts. Any part of a count, which is in its nature separable from the rest, may be removed by nolle prosequi, and the remainder stand. The defendant is not injured by the removal of superfluous or double allegations. He thus gets rid of the embarrassment he complains of. Jennings v. Commonwealth, 105 Mass. 586" court="Mass." date_filed="1870-11-15" href="https://app.midpage.ai/document/jennings-v-commonwealth-6416278?utm_source=webapp" opinion_id="6416278">105 Mass. 586; Commonwealth v. Dean, 109 Mass. 349" court="Mass." date_filed="1872-03-15" href="https://app.midpage.ai/document/commonwealth-v-dean-6416816?utm_source=webapp" opinion_id="6416816">109 Mass. 349; Commonwealth v. Tuck, 20 Pick. 356; 1 Bish. Cr. Proc. (3 ed.) § 1391; Heard Cr. Pl. 128.

It is objected to the count that it does not declare that the defendant set fire to the building with an intent to burn and destroy it. The intent is fully alleged in the averment that the defendant " feloniously, wilfully and maliciously ” did the act. The criminal act alleged in the indictment can not be committed without an evil intent. Alleging the commission of the act, alleges the intent. The other points made by the defense, do not require refutation. Shorn of the unnecessary and separable matter touching the burning of the barn, the count is in the common form and unobjectionable.

Oase to stand for trial.

Daneorth, Virgin, Libbey, Emery and Haskell, JJ., concurred.