State v. Carver

49 Me. 588 | Me. | 1861

The opinion of the Court was drawn up by

Davis, J.

This was an indictment against Carver and Lunt, as principals, and also against Wilson and Clapp, as accessories before tbe fact. The first two-, only, appear to have been arrested. Upon arraignment they pleaded guilty, and afterwards their counsel filed a motion in arrest of judgment. This was overruled by the Court, and the case comes before us on exceptions.

We see no objection to the indictment itself which can avail the defendants, especially after - the general plea of "guilty.” The count against them as principals is sufficient in all respects; and, without intending to intimate that Wilson and Clapp may not be held.upon the same indictment, we are clearly of the opinion that judgment may now be entered upon the pleas of the other defendants.

Another ground of the motion in arrest is, that the grand jury, by whom the indictment was found, were "not legally drawn, and had no power to act in the premises.” This allegation is one of fact, as well as of law. The facts do not necessarily appear of record, though in this case the return upon one of the venires does show that one of the grand jurors had no authority to act as such. State v. Clough, ante p. 573. But neither the venire, nor the return, constitutes any part of the record of this particular case. The proceedings of the departments of the government, of counties and towns, and officers of counties and towns, are all brought into requisition in order to constitute the Court. Some of these are matters of record in-the Court, of which judicial notice will be taken, without other proof. But, if pleaded, they are to be pleaded as matters of fact however pnoved. They are procéedings preliminary to the organization of the Court, and not proceedings of the Court after it is organized. A motion in arrest of judgment in any par-, ticular case does not necessarily bring them before us. They cannot be brought before us except by being pleaded specially ; and they cannot be pleaded in such a motion with any more propriety than any other extrinsic facts.

A motion in arrest of judgment, in many of the States, is substantially a motion for a new trial, often for reasons entirely extrinsic of the record. But, at common law, "judgment can never be arrested but for that which appeal’s upon the record itself.” Peachy v. Harrison, 1 L’d Raym., 232; S. C., 1 Salk., 77; Sutton v. Bishop, 4 Bur., 2283, 2287. The same rule prevails in this country. Such a motion can only be made " on account of some intrinsic defect, apparent on the face of the record, which would render the judgment in the case erroneous.” Howe’s Practice, 533 ; Bedell v. Stevens, 8 Foster, 118 ; Burnett v. Ballard, 2 N. & M., 435; State v. Bangor, 38 Maine, 592, and cases there cited.

That the "record” referred to in these decisions is the record of the particular case under consideration was expressly hold in the case last cited. It was alleged in the motion that another indictment for the same offence was found at the same term of the Court. But it was decided that such a motion would not be entertained where proof was required to sustain it, though the proof was a matter of record in the same Court.

A motion in arrest presents only the sufficiency of the indictment. State v. Nixon, 8 Verm., 70. It is equivalent to a demurrer, and can be sustained only when all that is alleged in the indictment may be true, and yet the person convicted not have committed any offence. State v. Hobbs, 39 Maine, 212, and cases cited. And, even for defects which would be fatal to an indictment upon demurrer, if they are such as are aided by a verdict, judgment will not be arrested after conviction. Commonwealth v. Tuck, 20 Pick., 356.

Nor will judgment be arrested for anything that could have been pleaded in abatement.

By pleading generally to the indictment the defendant admits its genuineness, and waives all matters that should have been pleaded in abatement. The decisions to this point, both in England and in this country, are numerous. But it is urged that such cases are to be distinguished from the one at bar, because here the defendants deny that there is any indictment, on the ground that there was no legal grand jury.

The question here presented has often been raised in this country, and it has uniformly been held that it is too late, after a verdict, to object to the competency of the grand jurors by whom the indictment was found, or to the mode of summoning or impanneling them. All such objections must be pleaded in abatement. The question is discussed at length in the case of People v. Robinson, 2 Parker’s Cr. Rep., 235, where many of the American cases are collected. The Attorney General,-in the case before us, has cited other cases where the same doctrine is held. And we are not aware of any cases where it has been called in question.

The exceptions must be overruled.

Tenney, C. J., Rice, May, Goodenow and Kent, JJ., concurred.