State v. Goddard

69 Me. 181, 1879 Me. LEXIS 34

• Court: Supreme Judicial Court of Maine
• Decided: February 12, 1879
• Status: Published

Opinion

Yirgin, J.

It is contended that the offense set out is not a felony, and therefore that the allegation, that the acts therein described were feloniously done, is improper.

We do not think the objection tenable. Moreover, if it were, it would not be sufficient cause for quashing the indictment, inasmuch as such irregularity would not tend to the defendant’s prejudice. If the simple allegation tended to prejudice the party accused, the provision in B. S., c. 131, § 12, would be a nullity.

But an assault and battery, as defined in B. S., e. 118, § 28, is, as the statute now stands, a felony. The term “ felony,” when used in B. S., cc. 117 to 139, inclusive, includes every offense “ punishable by imprisonment ” “ for the term of one year or more.” B. S., c. 131, § 9 ; c. 135, § 2. The offense of assault and battery is defined in c. 118, § 28. Though prior to 1872 the maximum imprisonment therefor was less than one year, the legislature then increased the maximum to a “ term not exceeding five years,” $,nd thereby made the offense a statute felony. St. 1872, c. 82. To be sure, this statute does not in totidem verbis provide that B. S., c. 118, § 28, shall be amended by changing the term of punishment as therein provided ; but it is none the less an amendment; and from the date of the amendment B. S., c. 118, § 28, is to be construed as if it originally contained the new provisions. Byron v. Co. Gomm’rs, 57 Maine, 340. Blake v. Bracket, 47 Maine, 28.

Assault and battery being a substantive felony under the stat-lite, there was no need of charging an intent to commit any other felonious offense.

Exceptions overruled.

Appleton, C. J., Walton, Barrows and Libbey, JJ., concurred.