State v. Melanson

126 A.2d 278, 152 Me. 168, 1956 Me. LEXIS 54

• Court: Supreme Judicial Court of Maine
• Decided: October 15, 1956
• Status: Published

Opinions

Williamson, J.

This criminal case is before us on exceptions by the respondent to the sustaining of the State’s demurrer to his special plea in bar. The issue is whether a speeding summons which fails correctly to set forth the statutory prima facie lawful speed constitutes a bar to prosecution of the alleged violation of statute.

The respondent is charged on a complaint originating in the Lewiston Municipal Court with the misdemeanor of driving a motor vehicle at a speed not careful and prudent. R. S. c. 22, § 113, I, II, II-C, and II-D. Specifically, the charge is that the respondent drove a motor vehicle at a speed of 55 miles an hour, it being then and there prima facie lawful to drive at a speed not exceeding 25 miles an hour.

In the Municipal Court a demurrer by the State to a special plea in bar, identical with the plea later made in Superior Court, was sustained and the respondent ordered to plead over. The respondent thereupon pleaded not guilty, waived hearing, and appealed from a finding of guilty.

On appeal in the Superior Court the respondent filed a special plea in bar alleging that the complaining witness, a police officer, gave him a summons or notice to appear in the Municipal Court which incorrectly stated the prima facie lawful speed at the time and place of the violation to be 55 miles an hour. The State demurred and the respondent joined therein. The presiding justice made the following rulings and orders at the November Term 1955: “Demurrer to plea sustained. Respondent to plead over. Exceptions of respondent allowed. . . . Extended bill of exceptions to be filed on or before January 10, 1956.” In January 1956 the extended bill was filed and allowed and the case marked “Law” on the docket. The respondent did not plead over in response to the order of the presiding justice.

We are not here concerned with the plea attached to the respondent’s appeal from the Municipal Court. In receiving and acting upon the special plea in bar the presiding justice impliedly consented to the withdrawal of the “not guilty” plea. State v. Schumacher, 149 Me. 298, 101 A. (2nd) 196. Compare State v. McClay, 146 Me. 104, 116, 78 A. (2nd) 347 and State v. Lawrence, 146 Me. 360, 82 A. (2nd) 90.

The respondent’s case rests upon the meaning of the portion of the statute reading:

“Any speed in excess of the limits established by law shall be prima facie evidence that the speed is not reasonable and proper as defined in subsection I of this section. In every charge of violation of a speed limit, the complaint, also the summons or notice to appear, shall specify the speed at which the defendant is alleged to have driven; also the speed at which the statute declares shall be prima facie lawful at the time and place of the alleged violation.” Section 113, II, supra.

The critical words also the summons or notice to appear were first enacted in P. L. 1939, c. 213, § 4. The remainder of the sentence may be traced to P. L. 1929, c. 327, § 16 (b).

The plea of the respondent is specially in bar, not in abatement. It is so entitled and so intended by him. In argument he urges that “prosecution is forever barred.” State v. Demerritt, 149 Me. 380, 103 A. (2nd) 106.

We have no difficulty in construing the provision for a statement of prima facie lawful speed in a summons or notice to be directory and not mandatory. The purpose and intent of the Legislature to give the alleged violator notice of speed and the speed limit is apparent. It does not follow, however, that the Legislature intended that error by the officer should vitiate the proceedings.

The language of the statute does not compel such a strange result. Violators are not to go free for such an unsubstantial reason, nor do they obtain from such an error by an officer an “immunity bath,” to use a phrase from State v. Boynton, 143 Me. 313, 322, 62 A. (2nd) 182, 188.

We may test the correctness of our conclusion by examining possible harm to a respondent from an error in the summons. The summons does not take the place of a complaint properly drawn and issued. At most, the respondent in the instant case was misled until he read the complaint setting forth correctly the prima facie lawful speed. We may readily consider that in such a situation a court would give the respondent ample time to prepare his defense. What more could he fairly ask?

The respondent does not question the sufficiency of the complaint. The complaint is the indispensable charge of the crime. Jurisdiction was not lost by a mistake of the officer in issuing the summons or notice to appear in court. The exceptions must be overruled. State v. Boynton, supra.

The respondent’s plea was a dilatory plea. State v. Boynton, supra; State v. Thompson, 143 Me. 326, 62 A. (2nd) 191. In sustaining the demurrer thereto the court in substance overruled the plea. The statute reads, “When a dilatory plea is overruled and exceptions taken, the court shall proceed and close the trial, and the action shall then be continued and marked ‘law’ . . .” R. S. c. 106, § 19.

The respondent confronted with the adverse ruling did not exercise his right to plead over. He chose instead to bring forward his exceptions without trial, and to submit his cause for final determination on the strength of his special plea.

The case is governed by the rule stated in State v. Inness, 53 Me. 536, 541, in which the respondent pleaded specially a former conviction, the court said:

“. . . having entered his action in this Court, which he could not rightfully do unless it was in a condition to be finally disposed of if his exceptions should be overruled, his right, if any, to answer further, must be regarded as waived.”

See also State v. Cohen, 125 Me. 457, 134 A. 627 and State v. Jellison, 104 Me. 281, 71 A. 716.

The entry will be

Exceptions overruled.

Judgment for State.