State v. Hurley

71 Me. 354, 1880 Me. LEXIS 93

• Court: Supreme Judicial Court of Maine
• Decided: August 5, 1880
• Status: Published

Opinion

AppletoN, C. J.

This is an indictment for arson under B,.. S., c. 119, § 1.

The indictment alleges that the defendant at Deering, &c., on twenty-eighth day of June, 1879, with force and arms the dwelling house of one Catherine Connors, there situate, in the night time felonously, willfully and maliciously did set fire to with, intent to burn the same and the said dwelling house was thereby then and there burnt and consumed.

The setting fire to the dwelling house is alleged with, time,, —the night time of the twenty-eighth of June, 1879, and' with' place, —Deering. The rule is, that when a single fact is alleged: with time and place, the words "then and there,” subsequently-used as to the occurrence of another fact, the burning thereby,, refer to the same point of time, and necessarily import that the' two were co-existent. Com. v. Butterick, 100 Mass. 12. Where, more times than one have been mentioned in the indictment, it is; not sufficient to use the words "then and there,” because- it is. uncertain to which of the times previously named they refer: 1. Bishop’s Criminal Procedure, (2d ed.) § 414; State v. Hill, 55 Maine, 365. But in this indictment but one time is named.

But if the indictment was held not sufficiently to describe an: offence in the night, then it must be regarded as describing one-in the day time, according to the argument of defendant’s counsel,, and as the punishment now is the same, whether committed by day or night no reason’ is perceived for an-esting judgment.

Exceptions overruled.

Judgment on. the verdict.

Walton, Barrows, Virgin, Libbey and SymoNds, JJ., concurred.