State v. Withee

87 Me. 462 | Me. | 1895

Walton, J.

At the trial of this case in the court below, exceptions were taken to several of the rulings of the presiding justice ; but we do not find it necessary to consider these exceptions, for the reason that we are satisfied that the motion in arrest of judgment for the insufficiency of the indictment must be sustained.

The defendant is accused of cheating by false pretenses. It appears that he, and one Fred D. Moore swapped horses ; and it is alleged in the indictment that the defendant falsely pretended that his horse was sound and that he falsely represented that he came from down east and was not the Andrew Hilton horse.

The indictment contains two counts. We think the first count is defective in omitting to allege that the false pretenses were made with a view or design to effect an exchange of horses. The statute on which the indictment is founded declares that, "whoever designedly, and by any false pretense,” obtains from another any money, goods, or other property, shall be deemed guilty of cheating by false pretenses, and be punished therefor by fine or imprisonment. R. S., c. 126, § 1. It will be noticed that the statute uses the word "designedly.” And this word has been inserted in all of the indictments founded on this statute, to which our attention has been called. In State v. Mills, 17 Maine, 211, the indictment alleged that the defendant did knowingly and "designedly” falsely pretend, etc. In State v. Philbrick, 31 Maine, 401, the indictment alleged that the defendant did falsely, knowingly, and "designedly” pretend, etc. In State v. Stanley, 64 Maine, 157, the indictment alleged that the defendant knowingly, "designedly,” and falsely pretended, etc. In State v. Paul, 69 Maine, 215, the indictment alleged that the defendant unlawfully, knowingly, and "designedly” did falsely pretend, etc. In Com. v. Strain, 10 Met. 521 (a leading Massachusetts case), the indictment alleged that the defendant unlawfully, knowingly, and " designedly ” did falsely pretend, etc. The word " designedly ” describes an essential element of the crime which none of the words or phrases in the first count of the indictment in this case do or can supply.

In the second count in the indictment the word " designedly ” is properly inserted. But there is another omission in this count which is fatal to its validity. It omits to state the time when the alleged offense was committed. The omission was undoubtedly accidental, but it is none the less fatal. State v. Beaton, 79 Maine, 314; State v. O'Donnell, 81 Maine, 271; State v. Dodge, 81 Maine, 391; State v. Fenlason, 79 Maine, 117; State v. Baker, 34 Maine, 52.

The exception's to the overruling of the motion in arrest of judgment are sustained, and the judgment is arrested, and the indictment quashed.

Indictment quashed.