State v. Wing

STATE Maine Jeffrey

Thomas WING.

Supreme Judicial Court of Maine.

Argued Jan. 18, 1981.

Decided March Mills, Regan, Dist. Kevin J. Atty.,

Janet Auburn, Atty. plain- for (orally), Asst. Dist. tiff. Lewiston, (orally), M. for

Gaston Dumais defendant. McKUSICK, J., and WER-

Before C. GODFREY, NICHOLS, NICK, ROBERTS CARTER, JJ. McKUSICK, Chief Justice. Wing appeals Jeffrey

Defendant Thomas (Androscoggin Superior his Court jury after a County) convictions entered burglary, trial 17-A M.R.S.A. theft, 353. Defend- (Supp.1980), and id. § should that his convictions ant asserts prove failed to reversed because the State occurred in alleged and because the justice erroneously refused to presiding concerning instruction give requested jury Finding witness. no error an absent proceedings, deny we Superior Court appeal. arose out

Defendant’s convictions evening of which took on the incident premises O’Con- June evening, On that nor’s Pizza Auburn. the plainly break-in occurred in a shed was used with restaurant. Each was located meaning a within building next of “structure” the of 17-A to the restaurant O’Con- 401,1 statute. See burglary the M.R.S.A. § nor’s Pizza and that used to store the was O’Connor, id. 2(24).2 proprie- Robert the empty § returnable beer and soda cans used Pizza, tor of testified O’Connor’s that both at that business establishment. Several were buildings indeed his property. He empty cases of cans were removed from the storage further testified that the shed was officer police shed. An Auburn who was adjacent portion to the located main of the in the restaurant at time of the buildings restaurant and that the two were apprehended incident defendant as he was placed to each person so close a running carrying couple from the scene a of who to walk them might tried between rub empty cases of cans. Defendant indict- his shoulders both at once. 14, 1979, August ed on a bill charging he used O’Connor also stated that the shed separate burglary crimes of and theft. empty to store beer returnable and soda indictment, first count The of cans after the contents had consumed charging burglary, alleged defendant with patrons pizza of his restaurant. that on or about June defendant every functionally sense shed was in a structure, namely place did a enter a of short, building, of the Each restaurant. Pizza, business known as O’Connor’s structure, place namely was “a a of business O’Connor, of property knowing Robert Pizza, known as of property O’Connor’s or privileged licensed was] Robert [he O’Connor.” do so with the and intent commit theft However, even if we were to find the therein. variance, proof and evidence trial established that there variance would not We have pre- be fatal. were premises two structures on the of viously held that an indictment is sufficient Pizza, namely, O’Connor’s main restau- if building storage rant shed where respondent of reasonable normal the burglary place. took After the State would, intelligence, language of rested, defense counsel moved for a judg- indictment, adequately informed acquittal burglary charge ment of of the crime and the nature ground proved had not State and, order thereof in to be able defend beyond a reasonable doubt defendant convicted, if make use conviction had into broken and entered the structure plea jeopardy, as a former basis namely, referred to should the occasion arise. theory, counsel’s the main restaurant build- Charette, State 159 Me. ing of presiding jus- O’Connor’s Pizza. The (1963). A.2d For reasons al- tice denied the motion. hold that We he did stated, ready language of the indict- doing not err in so. apprise ment was sufficient to defendant We conclude that the in the case at burglary the nature offense with bar to the conformed tenor indict- charged. Particularly which he was under structure, phrase namely ment. The “a pleading requirements the liberalized Clair, v. St. 7(c), business known as O’Connor’s Piz- see M.R.Crim.P. za, property O’Connor” Robert de- fact that both building scribes either the main restaurant the shed and the restaurant could structure, or storage adjacent shed namely located to and be characterized as “a 401(1) (Supp.1980) provides 2(24) (Supp.1980) provides 1. 17-A § M.R.S.A. 2. 17-A M.R.S.A. pertinent part that: that: person guilty A if he enters “Structure” means a or other structure, place designed surreptitiously provide per- or in a remains for knowing privileged property against that he is sons or or not licensed weather intrusion so, to do with the commit a intent to crime therein. adequately pro- Piz This defendant place of business known as O’Connor’s reprosecution za, O’Connor,” any danger of does tected from property of Robert practice While the better the same offense. not render the indictment so indefinite that have been for the to be would indeed it to inform of the essential fails defendant possible describing precise as concerning burglary charge, see facts into, was broken no short- 265, structure that Ball, (Mo. v. 432 266 State S.W.2d requires coming in this indictment reversal Walker, 1968);3 see 47 Ill. People also v. conviction thereon. defendant’s 737, 738-739, 190, 192, App.3d 8 Ill.Dec. 365 428, (1977). N.E.2d 430 Defendant could error, claim of Defendant’s second pretrial he have resolved uncertainties convictions, by which he attacks both is also may have had as to which structure was jury without After the had retired merit. specified by moving in the indictment for a hour, for about an and had deliberated particulars bill of under M.R.Crim.P. justice requested presiding foreman 16(c)(2), Ball, supra see v. at 266. His State explain jury why Roy, to the one Richard option. counsel elected not to exercise that potential who had mentioned as a wit been dire, during ness for the voir had

Furthermore, unlikely in the event never taken the stand. Other witnesses reindicted, that defendant is hereafter Roy had alluded to the fact that Mr. had bar, along in the case at taken present in the restaurant at the time with the evidence at trial as well as this 10, 1979, incident, of the June and had Damon, Me., opinion, see State v. 395 A.2d informed the restaurant owner and the Au 121, (1978); Me., Nappi, 122 v. 369 police burn officer who was 230, (1977); Kimball, 232 State v. taking might place. time that a crime 305, 307 (1976), protect 359 A.2d him justice Defense counsel asked the showing that he already has been tried and jury Roy the absence of Mr. breaking entering convicted of the stor give trial should rise to an inference unfa age shed. Those recent and well-considered however, justice, vorable to the State. decisions of the fully sup Law Court are so, declined do and instead instructed the ported by opinions of the United States solely the case jury were decide Supreme Court. That Court has consistent presented. thereby on the evidence He ly held that in a second committed no error. accused who asserts a defense of former rely may on the record at bar, prosecutor In the case at told the case, large in the first Russell v. United justice presiding that he had mentioned Mr. States, 763-64, 1038, 749, 82 S.Ct. during Roy potential as one of his witnesses 1046-1047, 8 L.Ed.2d 240 but also hoped voir dire because he to be able to call may parol testimony “resort to to show the him, Roy but that Mr. had been unavailable conviction,” subject-matter Moreover, of the former throughout trial. there was no counsel, Bartell v. United U.S. defense nor is assertion at trial 383, 384-385, 33 S.Ct. 57 L.Ed. 583 elsewhere any suggestion there in the rec- Haas, ord, also United 583 F.2d any testimony by Roy See States v. Mr. would Cir.1978), denied, (5th merely cumulative of rt. have been other than ce Indeed, already 60 L.Ed.2d 240 evidence in the record. de- Ball, defective, fatally parties stipulated supra, tion was In State v. the information Creamery Company charged that defendant broke and entered “a the Emma owned Emma, namely City building, which at certain occupied by owned three Creamery Company, previous popula- the time of census had a the Emma corporation, Missouri located and situated tion of 202. The Missouri Court Emma, separate City County, Emma Saline Missouri.” held that the existence of three Creamery buildings bearing whether showed had no on Id. at 266. The evidence at trial open “the Emma did or did not break and enter defendant forced Creamery a door defendant particular building mentioned in evidence un- office and broke into a safe. information,” id., post-trial and affirmed the con- motion to vacate der the On defendant’s ground conviction that the informa- viction. his fense deny counsel does not appeal 7(c). Glassman, that M.R.Crim.P. H. See Maine the testimony Practice, of the restaurant owner and Rules of Criminal Procedure 7.3§ police (1967).1 officer indicated that Roy’s Mr. testimony would have been harmful to de reason, My point second and a ultimately Where, here, fendant. missing wit dissent, conceded Justice Carter in his ness was apparently equally unavailable to the record is devoid of suggestion both the State and defendant and the rec any way defendant was in sur- ord does not indicate that his testimony prised by the prejudiced manner of State, would have been detrimental to the preparation of his defense. justice the trial committed no error in de My third reason is that I find the indict- clining give requested instruction. ment entirely adequate alone as of the mo- Craig State, Ind., See 404 N.E.2d protect attached to the de- (1980); Williams, United States 496 F.2d subsequent prosecution fendant from for an (1st 1974). Cir. entry view, into either structure. In my entry must be: pleading requirements liberalization of 7(c) under expands M.R.Crim.P. also Appeal denied. scope of constitutional

Judgments of conviction affirmed. against jeopardy. concepts These are but two sides of the same coin—their WERNICK, GODFREY, NICHOLS and parameters are identical. When we say as ROBERTS, JJ., concurring. a matter description of law that a is suffi- ROBERTS, J., GODFREY, J., with whom cient support a entry conviction for into joins, separately explanation writes of his structures, either of two then descrip- concurrence. tion is also prevent subsequent sufficient to prosecution CARTER, J., relative to either structure. dissenting. prosecution Whenever the rely chooses to ROBERTS, Justice, concurring, with upon liberal pleading requirements then the GODFREY, Justice, whom joins. expect scope must of double join I majority with the of the Court for jeopardy protection expanded. to be Even reasons, three the last of prompts which me Wing if acquitted had been by jury a on the to write separately. basis of erroneously requiring instructions My first proof entry reason is that there is of no vari- into the main restaurant Pizza, ance between the he could not proof. indictment and the of O’Connor’s Wing again prosecuted have entry entry with into a struc- into ture owned the shed. Robert O’Connor. The addi-

tional allegation, “namely a of busi- CARTER, Justice, dissenting. Pizza,” ness known as O’Connor’s did not necessarily scope narrow the of the indict- I dissent from the of majority views principal ment to structure used in question of whether there is an reject that business. I suggestion of impermissible variance in this case between Justice Carter the indictment must the charge trial and set forth contain a description sufficient to eliminate in the indictment. I otherwise concur in all suggestion other structures. a Such be- majority opinion, but would reverse the promise simplification lies the inherent in judgment below because my disagree- Supreme adoption Judicial Court’s of ment on this issue. Glassman, 7.11, According supra inability to H. of Maine “the of the seventeenth century accept Judicial Court common law to understand or pleading every that did not exclude misin- recognized, paraphrase has Justice terpretation capable occurring to intelli- Holmes, Rights, giv- that the Declaration of gence pervert.” fired with a desire to ing the defendant to demand the (quoting Paraiso v. United nature and cause of the accusation (1907)). him, 28 S.Ct. 52 L.Ed. 249 upon does not fasten forever the State prod- pizza Neither nor other finished

I. are any raw therefor sold uct nor material place too I do not believe that we would or found that structure. system upon enlightened a burden great prosecutors justice, the state’s shed was says Yet the “the therein, prosecutor, acting require of the res- every functionally sense citizen with the when he wishes fact, In taurant [O’Connor’s Pizza].” sufficiently burglary, have offense the shed was evidence shows plain- investigated his case to enable him to proximity situated in close physically definitely charging ly identify and empty bever- restaurant and claimed to have document structure from the age resulting containers business subject ques- been the activity carried in the restaurant build- true especially tion. I take this to be most redemption. ing pending were stored there ours, system justice, as does when that evidence, submit, I not show does Such crimi- generally utilizes “liberalized rules of of substance be- “functional” connection which release the pleading” nal otherwise It cannot buildings. tween the two reason- ex- prosecutor from fetters of technical building is ably be said that either pression grammatical and definitional physically sepa- are other. nicety. need “Liberalization” Whatever relationship rate. the functional stretched, however, not be to authorize structures, shed is between the two certainty, clarity, abandonment of all same structure as “O’Connor’s Pizza.” the expression. precision of sense, not, entry into one is in an The here The bald fact is that this defendant entry performance into the other. The charged building with one burglary of (e. nominally g. only related function by was convicted at trial of a and evidence storage beverage temporary empty con- burglary indict- building. of another tainers) change does not fact charged the defendant with an unlaw- separate buildings are structural entities entry into a therein building ful identified dissipate significance does it nor as Pizza.” estab- “O’Connor’s The evidence digresses Where the trial fact. building lished that there was so identi- a charge from the on a foundational matter that, The evidence fied. also established intimately with the substance so connected notwithstanding the the indict- content of charged, discrepancy the offense ment, the defendant not break into that did permissible cannot be considered a variance. building. All the un- evidence at trial was on questionably oriented with deliberation digression easily a so avoided To sanction prosecutor proving instance will prosecutor in the first separate, the defendant broke into another generate litigation an esoteric issue over distinct, building discretely identified needlessly this Court has created. proven to the first. never nearby It was coming over the litigation a course of Such entered, illegally or other- that defendant only the needless ex- can result in decades wise, building indict- identified in the judicial re- penditure always precious trial, a presented ment. On evidence cases, the considering those intel- sources only jury could conclude that if defendant trial bench and perplexity lectual any building, entered it was not illegally bar, encouragement slovenly prosecu- charged by By any the one the indictment. injus- and at least occasional pleading torial evidence, building entered view of the tice. Piz- not be found could to be “O’Connor’s responsi- No Yet all of this is avoidable. was, rather, building separate It za.” would undertake defend prosecutor ble Pizza.” nearby to situated “O’Connor’s abstract, re- storage served as a shed. That “good practice” nor could he succeed sult of the build- physically was not attached It indictment; the endeavor it undertaken. This it was were ing described not hasty result of can be the where business was transacted. drafting ill-considered done without ac- (Mo.1968) (relied S.W.2d 265 cess necessary to the facts a crime majority) compelled by the law of this by plain language. and definite We should state. recognize it for what it is. The conse- I encouragement given by fear that quences recognition of such a will be less prosecu- decision in the case to painful now than will be after a hun- lethargy give torial point. dred cases on the unnecessary many courts work years. for I case, We have a rare opportunity in this put responsibility plead would so because on the presented by issue the in- simple a fact as identification of the struc- dictment we write on a clean slate. We ture in burglary belongs, cases where it construe provision relatively new with confidence prosecutors will rise Code, Criminal drafted as the result of ar- successfully thereby to the occasion created. study duous the purpose for of clearing away labyrinthine complexities of the

common law definitions of criminality. The II. says very plainly Code is the prejudicial error, In the absence of entry unlicensed of a structure. 17-A M.R. foregoing judicial matters of restraint and 401(1). It a structure says S.A. § “[a] economy justify reversing not would place designed provide or other defendant’s conviction. the majority As persons or property against out, points the indictment must be suffi weather or intrusion.” 17-A M.R.S.A. purposes cient both for of informing the 2(24). 7(c) “The in- M.R.Crim.P. states defendant of the crime and for dictment or the plain, information shall be a protecting danger him from the of double concise and definite written statement of jeopardy. recognize I that defendant has the essential constituting facts the offense inadequately shown that he was in charged” (emphasis added). proper ap- formed of the nature charges against plication straight-forward of these defini- however, him. The opinion, also tional rubrics easily accomplished can be effectively negates the constitutional any prosecutor who will take the time to placed not to be jeopardy twice in for the think on them and the facts of his case. Me.Const., I, 8; same offense. art. U.S. application That requires some identifica- Const., right, amend. V. That as secured by tion of the structures claimed to be the Constitution, the Federal applicable is made subject alleged of the burglary sufficient to proceedings to state by the Due Process distinguish them from other structures Clause of the Fourteenth Amendment. which the claim does not reach. Benton v. Maryland, 395 Why lay need we in this- clean field a (1969); Dean, 23 L.Ed.2d 707 Gwinn v. litigation fertile seed-bed of about under (1st 1980). 613 F.2d 1 Cir. what similarity circumstances of function I do not believe that this indictment test- physically separate renders two constitutionally operative point ed at the into legislative one? There is no basis in protects time this defendant concept. intent for such a concept The is a jeopardy risk of double in view of the vari- fiction, with, begin very and defeats the ance proof between it and the at trial. This purpose specific of the Code’s and simple jeopardy begins Court has said that when Further, definitions. there will be no need put the defendant is on trial before a court for such a if concept prosecutors understand jurisdiction, competent an indict- that we will Finally, not enunciate one. sufficient form and substance to enunciation concept of the will assure that jury sustain a conviction and the been has prosecutors abjure will not its beneficial charged Tise, with his deliverance. effects for them in the future. This Court (1971); ultimately by be driven its State v. own tor- Slorah, logic day finally tured to some decree that a 118 Me. 106 A. 768 If Ball, guarantee against result so ludicrous as that jeopardy double is to already tried by showing that he has it is at generality application, have entering breaking and sufficiency of and convicted of point in time that the Otherwise, judged. storage shed. the indictment must be who assert right is secured to those Damon, Kimball cases cited Nappi The general and has no protection appeal, express proposition by majority do are, at persons all who application to those I con- respect, In that believe stated. another, charged with crime. time or one with the decisions of United States flict point and precise on that Court type at trial of the Once a variance occurs of reason in definition here, that, with the dictates clear if the indict- involved it is application of this constitu- scope of the encompass proof that is ment is read to guarantee. tional variance, cannot also be the indictment read at the trial as suffi- commencement of dis- must be protection A constitutional guarantee against cient to double abstract, available, all cernibly Here, the statute of the defendant. [17--A for it. rule who have need people en- 401(1)] makes it a crime to M.R.S.A. § by in the cases cited set forth satisfied, ter, being specified elements other making has the effect of charges The indictment a structure. avail- guarantee against structure, entry with such defendant (1) transcripts secure able to those who business which it identifies as “a trials, (2) pursue appeals from of their or ” known as ‘O’Connor’sPizza.’ trials, resulting from their judgments showing that by varies from the indictment language the indictment cases where the specified place of business is not a sin- sufficiently specific to show itself is not structure, gle up but is made of two struc- (or identical to subsequent that a is Thus, the state under this indict- tures. than) the earlier one. This makes different opportunity, scope within the ment has the pro- guarantee a constricted and otiose indictment, language to con- af- Those without the elucidation tection. that he en- by proving vict the defendant transcript appellate opinion forded Regardless tered either of two structures. protection. denied the are with the way proceeds of which the state narrowing scope of this This fact, remains proof on that the defendant manifestly not intended the Constitu- exposed entry trial for second sanctioned tion and has never been structure, scope within the an offense That Supreme Court. Court United States in the first trial. The of the indictment pains require consistently has been at therefore, because of the ambi- defendant sufficiently must be the indictment guity in it is treated as if identifying the crime precise in sufficient, of a second exposed to threat guard will be a that the indictment itself variance trial for the same offense. The trial on the same against subsequent crystal clarity with the defect establishes Hess, v. 124 U.S. United charge. States the indictment. (1887); 483, 571, Evans 31 L.Ed. 516 8 S.Ct. majority, saving 584,14 934, States, S.Ct. v. United 153 U.S. proposition that the insuffi- upon relies (1893); Batchelor v. United 830 38 L.Ed. 447, 429, 446, indictment does not offend ciency 426, States, 15 S.Ct. 156 U.S. jeopardy because: guarantee against double v. (1895); Hagner United L.Ed. 39 478 417, 427, States, 76 L.Ed. 52 S.Ct. defend- 285 U.S. event unlikely [I]n Debrow, v. 346 reindicted, (1932); indictment 861 United States hereafter ant is 113, 92 374, 98 L.Ed. bar, 74 along with the U.S. S.Ct. in the case at taken than of the record other opinion, parts The idea that well as this evidence at trial as pro- 121, upon to Damon, Me., may be relied A.2d the indictment see v. 395 State against double (1978); A.2d vide sufficient Nappi, 122 v. 369 Nappi and Kimball, Me., in the 230, jeopardy as set forth (1977); 232 cases, out of the no doubt arises 305, (1976), protect will him Kimball 307 359 reference to “the record” in dicta in the The indication in majority opinion Hagner and Debrow cases. The inference the Court has held that reliance on permits the reference por- resort parts other of the record than the indict- tions of the record other than the indict- permissible ment is to avoid a fatal double is, however, purpose unjusti- ment for that jeopardy impact by an otherwise deficient very specific fied in view of the insistence indictment is reading belied a close prior cases that the indictment be so proposition cases cited for that by the as, itself, specific guard against subse- majority. States, In Russell v. United prosecution quent for the same offense. 749, 1038, 82 S.Ct. 8 L.Ed.2d 240 reading These cases full con- the comment referred (Majority opinion Hagner text of the references in and De- 1377) at clearly is dicta. The Court’s hold- emphasis brow demonstrate ing there was that the indictments were those upon specificity latter cases is defective “they because failed to sufficient- the indictment as the of the record ly apprise the defendant ‘of what he must serving protective preventing as the device be prepared to meet.’” Id. 764, is, record, a second trial. That that the 1047, 8 S.Ct. L.Ed.2d On the issue consist, may prevent whatever else it insufficiency jeopardy to meet double second trial for the same offense because a requirements, the Court said: properly drawn indictment is included in it. proper That this is the construction of the set out not Since the indictments Court’s intent is made manifest from its which places hearings times and most subject: recent comment on the testify, the Petitioners refused to but also precise manner in which an indict- specified precise questions they which ignored, ment is drawn cannot be because answer, it can then and there refused to important function of the indictment hardly be doubted that the Petitioners that, pro- is to ensure “in case other fully protected being put would be ceedings are taken [the defendant] for the same offense.... offence, . . . the record for a similar accuracy show with to what extent [will] Thus, Id. holding (1) of Russell is may plead acquittal he a former or con- the indictments are insufficient because viction.” apprise do not the defendant of the States, Sanabria United 437 U.S. 65- trial, charge (2) to be met at 2170, 2179-2180, 57 L.Ed.2d S.Ct. detail, indictments contain sufficient (1978) (quoting Cochran v. United face, prevent their subsequent 290, 15 39 L.Ed. charge.1 for the same The Court’s refer- (1895); citinfg Hagner) Russell and ence to use of the record in case of further is, (emphasis added). There in none of proceedings is the clearest kind of unneces- cases, any holding these that where the Further, sary “make-weight” dicta. the use prevent not sufficient an premised upon of the record is thus supplied other the defect can be (e. very g. that consideration record parts point of the record. At no contains an indictment sufficient to identify given ap sanction to reliance previous pellate opinion remedy degree with that defect in the indictment. specificity prevent jeopar- which will charge States, 1. It should be in recalled Rus- under the statute.” Russell v. United (e. unique, statutorily 764, 1047, sell was a defined crime 251. 82 8 L.Ed.2d S.Ct. g. questions pertinent point was refusal to answer to the the Court It was on this question inquiry, congressional under before concerned to determine if the indictment was subcommittee). regard: apprise The Court said this sufficient to the defendant very criminality charge By specifying “... core of under to be faced at trial. [T]he [the time, pertinency subject place, questions is to the under in- occasion and the the de- statute] answer, quiry questions alleged of the which the defendant re- fendant was to have refused actually subject provided protection against fused to answer. What the indictment sub- was, therefore, every prosecution sequent prosecution for the same offense. is central

1383 setting forth ment intended without it cannot be dy). premise, With that as a its. Bennett, 16 v. United States contents. parts of the said that Russell holds Cases, 24, 338, p. vol. Federal Blatchf. may be other than the indictment record 571; States, v. United Rosen No. jeopar- upon potential to avoid double relied 434, 40 L.Ed.2d S.Ct. U.S. [16 606]. indict- consequences in the absence of an dy case, purpose. for that In such the indictment was ment sufficient at 431. Id. guard against jeopardy, double sufficient to The same is true in the case United content not though the obscene even Haas, (5th 1968). 583 F.2d 216 Cir. States acceptance The Court’s set forth in detail. There, the Court holds: pleading, a rule of exception, under does contain the basic The indictment being from prevent the indictment did necessary apprise the defendant facts jeopardy to meet double sufficiently precise jeop- prevent of the and to double antique sensitivity of requirements. The ardy. view, casts, my fatal holding such a added). (emphasis being Id. at 221. That upon vitality of that 1913 decision doubt case, obviously record would predicate for the determination as protect against available to double signifi- scope right of constitutional prosecution; but event of further and contem- cance under modern conditions because a sufficient indictment is a porary mores.2 of that record. to re- given is sanction point At no authority, remaining Bartell Court’s remedy appellate opinion an upon liance United this Were the defect in the indictment. clearly distinguisha- is L.Ed. doctrine, would al- appealed valid one who prosecution ble case. The from protection, ways gain the benefit of depositing an there was for the offense of the court can al- post-conviction, because mails. The obscene letter in the Federal the indict- ways deficiency correct indictment set out all of the details of appeal. On simply because (e. g. the deposit letter and its date not, hand, cannot who does or one letter, place mailing, the addressee of the subject always be to a second appeal would address), and the addressee’s but omitted to trial, of the corrective and in the absence describe the obscene content of the letter on nothing prevent would it. appellate opinion, it_was: the basis that cases, Thus, is rendered in all obscene, lewd, that such nugatory. I cannot believe filthy, . . . too offensive it would be contemplated, or as to be result is and of such indecent character condoned, by the United States unfit to be set forth in this indictment Court. spread length upon and to be the rec-

ords of this Honorable Court. I would reverse this conviction. opinion in Id. at 430. The court relied in its that al- upon

that ease a rule of

lowed obscene matter to: by a reference sufficient

be identified the letter or docu-

advise the accused of issue, proper enough it to undertake apparently even were it concerned because, inadequate protec- assum- possibility is irrelevant even to do so. It about of an valid, jeopardy arising ing from to be a constitutional its the assessment tion reason, cannot, depend today right its own be made to take comfort decision prosecutor. upon If the de- in this whim of the assessment further “unlikely (Majority opinion right against dou- event.” fendant has a constitutional case is an p. 1377). say or not so. Whether ble we should may actually the benefit of need to claim he rendition of such an assessment The valid right this case should aftermath of court, Court, impos- any appellate determining properly play whether no role in impossible be- It is sible as it is irrelevant. on the facts and is violated evidentiary exists matrix cause the Court has no case. judgment on such which to make an informed

Case Details

Case Name: State v. Wing

Court Name: Supreme Judicial Court of Maine

Date Published: Mar 18, 1981

Citation: 426 A.2d 1375

Court Abbreviation: Me.