State v. Morrissey, 70 Me. 401

State v. Morrissey

70 Me. 401 | Me. | 1879

Peters, J.

The first count is the copy of a form provided by an English statute (St. 14 and 15, Yict. c. 100, § 4 ); adopted by our legislature (Laws 1865, c. 329) ; approved and sustained by this court (State v. Verrill, 54 Maine, 408) ; with this difference, that in the statutory form the allegation does not appear, as it does in this indictment, that.the prisoner “made an assault upon *404the deceased.” The wisdom of the statute we have no doubt of.- There was.no part of criminal pleading so difficult, as to safely and correctly describe in an indictment the means and manner by which a murder was committed. The declaration of Sir Matthew Hale seemed to be justified when (2 Pleas C. 193) he said that “over-grown curiosity and nicety has become the disease of the law, and more offenders escape by the over easy éar given to. exceptions in indictments, than by their own innocence.” Under this general mode of alleging the crime, a court can order such specification of details and particulars as may be proper, and allow amendment or alteration thereof, without imposing hazards upon the state or inflicting injury upon the prisoner. We accept the occasion to express our opinion of the correctness of the decision in State v. Verrill, and to affirm the same.

It is contended that, inasmuch as an assault is alleged in this indictment, not in accordance with the statutory form but additional thereto, the particular means by which the assault was committed must be set out. It is claimed that in State v; Verrill this point was not presented. If the indictment be good without such unnecessary allegation, it must be as good with it. The pleader adding words to what was complete before, only requires him to prove all that he has alleged. He is required to prove the murder to have been committed by force. But it does not follow because he has alleged more than is needful, that he is in a dilemma of not having alleged enough. He is not required to spread out his general averment of assault into particulars. State v. Noble, 15 Maine, 476. State v. Smith, 32 Maine, 369.

We think the second count sufficient. We have seen no precedent of indictment that omits an allegation of the sex of the infant child, nor has any case come to our notice which decides that the allegation is necessary. ■ Mr. Wharton in his Criminal Precedents remarks that the averment is necessary. But why necessary ? The law requires a person to be described by his name. We take it that if an infant has a name, there would be no more occasion for averring the sex than in any other case. But it is laid down as a rule that, the name being unknown, it is *405sufficient to aver the name of the killed or injured person to be unknown. The law requires that an indictment shall be so certain as to the party against whom the. offense was committed, as to enable the prisoner to understand who the party is, and upon what charge he is called upon to answer, as to prevent the prisoner from being put in jeopardy a second time for the same offense, and as will authorize the court to give the appropriate judgment on conviction. What would it practically add, in these respects, to the rights and safety of the accused in this case to have the sex alleged % In a criminal proceeding, the allegation of name is enough though there may be more than one person of the same name in the same place. State v. Grant, 22 Maine, 171. It is enough to allege the name to be unknown, although the grand jury might have ascertained what the name was. Com. v. Stoddard, 9 Allen, 280. An indictment need not describe, by an addition, the person upon whom an offense is committed. Com. v. Varney, 10 Cush. 402. In Bac. Ab. (Indictment G.) it is said, “Sometimes it may be convenient, for distinction sake, to add it,” but not essential, “for it is sufficient if the indictment be true, viz, that J. S. was killed or robbed, though there are many of the same name.” The tendency of modern decisions is to less strictness than formerly in describing pe'rsons and properties in indictments. If it is sufficient to describe a man by his name alone without an addition, when there are many others of the same name, or allow the person to be nameless in a presentment of the grand jury because they do not know what the name is, although they could have ascertained it by some painstaking, we think it can be no stretch of legal principle, to say that in the case at bar it is not essential that the sex should have been stated. Com. v. Brettun, 100 Mass. 206. Com. v. Campbell, 103 Mass. 486. Com. v. Strangford, 112 Mass. 289.

Demurrer overruled.

Appleton, C. J., Walton, Virgin and Lusinur, JJ., concurred.