84 Me. 461 | Me. | 1892
This indictment charges the illegal transportation of intoxicating liquors from the town of Fairfield in the county of Somerset to the city of Waterville in the county of Kennebec, and also from the depot of the Maine Central Kailroad in Fairfield to the house of Edward Libby in Waterville.
At the trial, in the Superior Court for Kennebec county, the
This was error. The learned judge evidently had in mind the question of venue merely, not remembering for the moment that the allegation of place -is a part of the description of the offense, and that the indictment charges a local offense.
Mr. Wharton, in his work on criminal evidence, basing his statement on numerous pertinent cases cited in his notes, states the effect of the decisions in the following terms : " Where the place is stated as matter of local description and not as venue, it becomes necessary to prove it as laid. Thus, for instance, on an indictment for stealing in the dwelling-house, &c., for burglary, for forcible entry, or the like, if there be a material variance between the indictment and the evidence in the name
Where the offense is in its nature local, and the place is stated by way of local description, and not as venue merely, the slightest variance between the description in the indictment and the evidence will be fatal. Archb. Cr. Pr. & Pl. Vol. 1, p. 85, note. In an indictment for arson, where the tenement was averred to be in the sixth ward of New York city, when it was in the fifth, the indictment was held bad. People v. Slater, 5 Hill (N. Y.), 401. The place where a crime is alleged to have been committed, when a matter of essential description, must bo particularly and truly stated and proved as stated. State v. Cotton, 24 N. H. 143. There is a general concurrence in the books and among the cases on this point.
State v. Lashus, 79 Maine, 541, really settles the present case. It was adjudged in that case that an indictment for the illegal transportation of liquors should describe the places between which the transportation took place. But there can be no necessity of such an averment unless the averment is to be proved. The offense charged in both that case and this is nuisance or of the nature of nuisance. All the offenses arising from the illegal possession of liquors are local. State v. Roach, 74 Maine, 562 ; State v. Kelleher, 81 Maine, 346. Locality is an inseparable part of the offense. The offense cannot be described without averring locality. Under the ruling at the trial evidence would have been admissible to prove that the transportation was between any places within the county of Kennebec.
Even if descriptive facts are laid with more particularity than need be, still as a general rule they must be proved as laid.
The government, having positively asserted in its indictment against the respondent that the carriage of liquors was between Fairfield and Libby’s house in Waterville, and thereby in effect just as positively asserting that it was not upon any other route or direction, must be confined to the proof of the transportation as alleged. Had the averment of localities been too general, a specification might have been called for, and, if furnised, would have been binding. No less binding is the specification when incorporated in the indictment itself, and in such form tendered as a notice to the party prosecuted. The report of the evidence and of the judge’s charge shows that the question raised in behalf of the respondent was relevant to the case.
Other questions have been argued by counsel for the defense, but as they will be examined in the case of another respondent
Exceptions sustained.