79 Me. 99 | Me. | 1887
The defendants, under their demurrer to the complaint, object that it was made on affirmation and hence is not a "sworn complaint,” which § 40, c. 27, R. S., on which it is founded, designates.
The answer is : A warrant may be issued " when supported by oath or affirmation.” Const. Art. 1, § 5. And inasmuch as the word " oath includes affirmation when affirmation is allowed,” (R. S., c. 1, § 6, cl. xii), a "sworn complaint” includes one made on affirmation, when the complainant is allowed to affirm. In the revision of 1883, the commissioner and legislature substitute "sworn complaint” for "complaint upon oath or affirmation,” in R. S., 1871, c. 27, § 35.
Moreover "he may affirm, when required to be sworn, and is conscientiously scrupulous of taking an oath.” R. S., c. 1, § 7. "A person is required to be sworn” when he makes a complaint under this statue, for he cannot make it in any manner other than on oath or affirmation. It would be hypecritical to
This complaint alleges that it was made " on solemn affirmation.” The certificate of the magistrate recites the same fact. And the certificate is conclusive not only that the complainant was " conscientiously scrupulous of taking an oath,” but that he formally "affirmed under the pains and penalties of perjury,” as is required by R. S., c. 82, § 104. State v. Blake, 79 Maine.
2. The complaint is founded on R. S., c. 27, § 40, and not on c. 132, § 11; and hence need not allege that the complainant " has probable cause to suspect and does suspect,” but by following the language of the statute on which it is based it is sufficient. State v. Nowlan, 64 Maine, 531.
3. Technical accuracy is not required in setting out a former conviction under R. S., c. 27, § 57. The purpose of this provision was to obviate the merely technical objections that might otherwise be made upon common law principles to the allegations and proof of such convictions. State v. Wentworth, 65 Maine, 234; State v. Hurley, 69 Maine, 573. No practical wrong can grow out of this mode. State v. Gorham, 65 Maine, 270. If the judgment of the former conviction has been vacated in anywise, it can be shown in defence.
4. The objection that " said liquors ” in the prayer for process may mean those mentioned in the allegation relating to a prior conviction is too fine to prevail.
Exceptions overruled.