State v. Martel

Supreme Judicial Court of Maine

State v. Martel

129 A. 226, 124 Me. 359, 1925 Me. LEXIS 36

CourtSupreme Judicial Court of Maine

DecidedMay 23, 1925

StatusPublished

Cited by1 cases

This text of 129 A. 226 (State v. Martel) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Martel, 129 A. 226, 124 Me. 359, 1925 Me. LEXIS 36 (Me. 1925).

Pincite

Opinion

Sturgis, J.

The respondent was convicted of unlawfully and carnally knowing and abusing a female child under fourteen years of age, contrary to R. S., Chap. 120, Sec. 16. Plis motion in arrest of judgment having been overruled by the trial Judge, his exceptions to that ruling are before this court.

The indictment charges the offense as having been committed on “the fourth day of November in the year of our Lord one thousand nine hundred and twenty-three and on divers other days and times between that day and the day of the finding of this indictment.” It is to the inclusion of this continuando that the respondent addresses his attack upon the indictment.

The crime charged is not a continuing offense. Each perpetration of the act is a-distinct and separate offense, and the inclusion of a continuando in the statement of the charge is neither necessary nor in accord with proper pleading. Such inclusion, however, is not fatal to the indictment. A single offense is sufficiently charged as committed on the 4th day of November, 1923. The continuando then added, since it does not state, any particular day on which an offense was committed, is insufficient as an allegation of a separate offense. State v. O’Donnell, 81 Maine, 271; State v. Beaton, 79 Maine, 314. Hence, there is no duplicity or repugnancy,' and by the weight of authority, the continuando may be treated as surplusage and rejected, leaving the offense stated with that degree of certainty which the law requires. Dansey v. State; 23 Fla., 316; Cook v. State, 11 Ga., 53; State v. Briggs, 68 Ia., 416; State v. Nichols, 58 N. H., 41; People v. Adams, 17 Wend, (N. Y.), 475; State v. Thompson, 31 Utah, 228;. 1 Bishops New Criminal Procedure, Sec. 388, 31 C. J., 747.

[361]*361Duplicity as a ground of arrest, even were it tenable, is not -now open to the respondent. Ilis objection that this indictment is bad for duplicity” cannot be made by motion in arrest of judgment. State v. Derry, 118 Maine, 431.

Exceptions overruled.

Judgment for the State.

Cornish, C. J., sat at argument and participated in consultation, but, owing to retirement, does not join in the opinion.

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Sturgis, J.

The respondent was convicted of unlawfully and carnally knowing and abusing a female child under fourteen years of age, contrary to R. S., Chap. 120, Sec. 16. Plis motion in arrest of judgment having been overruled by the trial Judge, his exceptions to that ruling are before this court.

The indictment charges the offense as having been committed on “the fourth day of November in the year of our Lord one thousand nine hundred and twenty-three and on divers other days and times between that day and the day of the finding of this indictment.” It is to the inclusion of this continuando that the respondent addresses his attack upon the indictment.

The crime charged is not a continuing offense. Each perpetration of the act is a-distinct and separate offense, and the inclusion of a continuando in the statement of the charge is neither necessary nor in accord with proper pleading. Such inclusion, however, is not fatal to the indictment. A single offense is sufficiently charged as committed on the 4th day of November, 1923. The continuando then added, since it does not state, any particular day on which an offense was committed, is insufficient as an allegation of a separate offense. State v. O’Donnell, 81 Maine, 271; State v. Beaton, 79 Maine, 314. Hence, there is no duplicity or repugnancy,' and by the weight of authority, the continuando may be treated as surplusage and rejected, leaving the offense stated with that degree of certainty which the law requires. Dansey v. State; 23 Fla., 316; Cook v. State, 11 Ga., 53; State v. Briggs, 68 Ia., 416; State v. Nichols, 58 N. H., 41; People v. Adams, 17 Wend, (N. Y.), 475; State v. Thompson, 31 Utah, 228;. 1 Bishops New Criminal Procedure, Sec. 388, 31 C. J., 747.

[361]*361Duplicity as a ground of arrest, even were it tenable, is not -now open to the respondent. Ilis objection that this indictment is bad for duplicity” cannot be made by motion in arrest of judgment. State v. Derry, 118 Maine, 431.

Exceptions overruled.

Judgment for the State.

Cornish, C. J., sat at argument and participated in consultation, but, owing to retirement, does not join in the opinion.

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129 A. 226, 124 Me. 359, 1925 Me. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martel-me-1925.

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