State v. McDonough , 84 Me. 488 ( 1892 )

AYalton, J.

All unnecessary prolixity in criminal as well as civil pleadings ought to be avoided. But it is a fundamental rule of the criminal law, from which no departure can be allowed, that no one shall be convicted of a crime unless the complaint or indictment upon which he is tried contains a direct allegation of every material fact which it is necessary to prove in order to establish his guilt. In other words, whatever it is necessary to prove must first be averred ; and averred directly, and not by way of argument, implication, or inference merely. Stale v. Philbrick, 31 Maine, 401; State v. Paul, 69 Maine, 215. In the case first cited the implication was exceedingly strong; but the allegation was not direct, and the indictment was held insufficient.

In the present case, the complaint alleges that the defendant transported intoxicating liquors from the office of the N. E. Dispatch Express Company, in Bath, to the building, Number 152, on the west side of Commercial street, with intent that said liquors should be sold in this State in violation of law. But it will be noticed that the complaint omits to allege that the defendant knew that the liquors were intoxicating. This was a fatal omission. The statute upon which the complaint was founded (It. S., c. 27, § 31), declares that no person shall "knowingly” transport, etc. Knowledge that the liquor’s were intoxicating is thus made important. It is the very essence of the offense and should be directly averred.

True, the complaint avers an intent on the part of the defendant that the liquors should be sold in this State in violation of law, and this may seem to^ imply a knowledge on his part that they were intoxicating liquors; but this is not a necessary inference, and clearly not such a direct and positive averment of the fact, as the rules of criminal pleading require. We think the complaint is fatally defective, and that the motion in arrest of judgment must be sustained.

Exceptions sustained. Judgment arrested.

Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.