State v. Smith

| Me. | Jul 1, 1872

DicKERSON, J.

These cases come before us on exceptions to the order of the presiding judge overruling the demurrer. The ground relied upon to sustain the demurrer is, that separate and distinct offences are charged in the same count. Both indictments aré brought on R. S., c. 27, § 20.

No rule of criminal pleading is better established than that which prohibits the joinder of two or more substantive offences in the same count. A substantive offence is one which is complete of itself, and is not dependent upon another. When several acts relate to the same transaction, ahxl together constitute but one of-fence, they may be charged in the same count, but not otherwise. Eacli count in an indictment most stand or fall by itself. The jury cannot find a verdict of guilty as to one part, and not guilty as to another part of the same count. This strictness of pleading is necessary in order that the accused may not be in doubt as to the specific charge against which he is called to defend, and that the court may know what sentence to pronounce.

When two or more independent offences áre joined in the same count it will be bad for duplicity. State v. Burgess, 40 Maine, 592-594 ; State v. Palmer, 85 Maine, 9; 1 Bishop on Crim. Pro. §§ 189, 193.

The section of the statute under consideration subjects traveling dealers and pedlars in intoxicating and fermented liquors to “ a penalty of not less than twenty nor more than one hundred dollars for each offer to take an order, and for each order taken, and for each sale so made.” It is as mueh an offence to offer to take an order as it is to take one, and vice versa. To make a sale is as much an offence as either of the other prohibited acts. Each of these acts is independent of each of the others, and constitutes a complete substantive offence. A conviction for one of these acts does not imply or involve a conviction for either or both of the others. Moreover, the penalty affixed to each of them is distinct and entire, and cannot be apportioned upon two or more of them.

These several offences being of the same nature, defined in the same section of the statute, and punishable with the same penalty, may doubtless properly, be charged in separate counts in the same indictment, though they cannot be embraced in the same count. In that case each count would present a single issue, and if sustained, would subject the accused to a certain, specified penalty. Not so, if all the three offences, or either two of them, are grouped together in one count. There would then be as many issues as there are offences charged, each requiring a different mode of proof. The evidence might warrant a conviction upon one of the offences charged, but not upon the others. But the jury cannot split up a count in an indictment, and find the accused guilty of a part, and not guilty of the balance ; their verdict must be an entirety. Besides, what sentence in such case must the court pronounce, upon the conviction of the, accused ? Must it impose the penalty affixed to one of the offences only, or the sum of the penalties affixed to all of them ? If the former, the accused escapes with a part of the penalty the law attaches to his acts ; if the latter, the court assume and decide that the accused has been convicted of several offences charged in one count.

The construction to be given to this statute is not analogous to that given to the statute against buying, receiving, or aiding in the concealment of stolen goods. The twb statutes are clearly, distinguishable in respect to the question under consideration. In that case the punishment is the same for one as for all three of the prohibited acts; and though each of the acts were charged separately, in different counts, only one punishment could be inflicted.. The several acts mentioned in that statute are but so many modes of describing one and the same offence, that offence being established by proof of either of the modes. But in the case at bar. as we have seen, each-act is complete in itself, and punishable by a distinct, specified penalty, the penalty for one act by no means answering for all the’acts mentioned in the statute. While in that statute but one offence is described, in the statute under consideration there are three offences, each of which may be charged in a separate count in the same indictment, and upon each of which counts the accused may be convicted and punished. State v. Nelson, 29 Maine, 334, 335.

The counts in the first indictment charge the two offences of “ offering to obtain and obtaining orders,” and must be held bad in accordance with the foregoing principles and construction of the statute. In this case the judgment must be

Exceptions sustained.

Indictment adjudged lad.

The first and second counts in the second indictment are bad for distinctly and separately charging the offence alleged as having been committed on more than one occasion, and with respect to more than one individual.

The third count is bad on the same ground and for the additional reason that it joins different and independent offences. For this last reason, also, the fourth count cannot be upheld.

Exceptions sustained.

Indictment adjudged lad.

AppletoN, C. J.; Waltox, Baukows, DaneoRTH, and Vnt-GiN, JJ., concurred.