State v. Hatch

94 Me. 58 | Me. | 1900

Peters, C. J.

These exceptions may be briefly dealt with. It is first averred in the indictment that the Respondent was a common seller, and this part of the indictment is not objected to. Then a former conviction is averred in these words: “ And the jurors aforesaid upon their oath aforesaid do further present that the said William N. Hatch has been before, to wit, at the February Term A. D. 1898, of the Supreme Judicial Court, Piscataquis County, Maine, convicted as a common seller of intoxicating liquors, under the laws for the suppression of drinking houses and tippling shops, in said County of Piscataquis, against the peace of the state, and contrary to the form of the statute in such case made and provided.”

It is contended, on general demurrer to the indictment, that the former conviction is not well alleged because of the averment that the offense was committed under the laws for the suppression of drinking houses and tippling shops. We think the questionable words may properly be regarded as immaterial and rejected as such. The indictment avers generally that the offense was committed against tbe statute, but does not accurately identify the particular statute which the pleader had in mind. It is merely an incorrect and unnecessary over-statement. All the essential features of the offense are found in the count without such statement. The count is perfect without it, and not vitiated with it. The super-added words do not mislead any one. The offense aimed at is described in the same chapter as the offense of keeping a tippling-house is, but in another section, one class of offense being covered by section 85 and the other by section 37 of chapter 27 of the revised statutes. No case in this state has gone so far as to support the respondent’s contention.

Exceptions and demurrer overruled.