State v. Hosmer , 81 Me. 506 ( 1889 )

Libbey, J.

This indictment is based upon § 73, of c. 49, of the R. S., as amended by act of 1887, c. 109. It provides that “no person shall act as an agent of an insurance company until there has been filed with the commissioner a duplicate power of attorney from the company or its authorized agent, empowering him to act, or a certificate from the company setting forth that such person has been duly appointed and authorized as an agent thereof. Upon filing such power or certificate, the commissioner shall issue a license to him, if the company is a domestic company, or has received a license to do an insurance business in this state. * * * And if any person solicits, receives, or forwards any risk or application for insurance to any company, without first receiving such license, or fraudulently assumes to be an agent, and thus procures risks and receives money for premiums, he shall be punished” as provided therein.

The first count in the indictment charges that the defendant, “at Camden, in said county of Knox, on the thirtieth day of December, in the year of our Lord one thousand eight hundred and eighty-seven, did solicit applications for insurance to a certain insurance company called the Manufacturers’ Accident Indemnity Company, of the United States, without having first received license therefor as provided by law.”

It is claimed in behalf of the state that this count is in the language of the statute and sufficiently charges the offense. But the charge in an indictment in the language of a statute creating the offense, is not necessarily sufficient. State v. Lashus, 79 Maine, 541. In that case the court say: “The law affords to the respondent in a criminal prosecution such a reasonably particular statement of all the essential elements, which constitute the intended offense, as shall apprise him of the criminal act charged; and to the end, also, that if ho again be prosecuted for the same offense he may plead the former conviction, or acquittal in bar.”

The offense created by the statute consists in acting as an agent for any insurance company in soliciting, receiving or forwarding any risk, or application for insurance, to the company without a license therefor. Under the terms of the statute, one can be licensed only to act as agent for some particular insurance company, after furnishing the required evidence of his appointment as such agent. The offense consists in acting as such agent without first complying with the statute and receiving a license to act as such agent. In this count, there is no allegation that the defendant in soliciting the applications for insurance, as set forth, acted or claimed to act as agent for the insurance company named.

Section 74, of c. 49, provides, that “any person may be licensed by the commissioner as a broker to negotiate contracts of insurance, and to effect insurance for others than himself for a compensation, and by virtue of such license he may place risks or effect insurance with any company of this state, or with the agents of any foreign company who have been licensed to do business in this state.” For aught that appears in the indictment, the defendant may have been a licensed insurance broker under the provisions of this statute, or the president or secretary of the company, having as such, full authority to solicit risks for the insurance company named. Hence the necessity that the indictment should allege the capacity in which the defendant acted or assumed to act.

Again, to render the charge of the offense reasonably specific, the indictment should allege the name of the person from whom the risk was solicited, so that the defendant may know the act charged against him, that he may be able to prepare his defense. There is no such allegation in this count.

The second count charges that the defendant “did fraudulently assume to be an agent of a certain insurance company called the Manufacturers’ Accident Indemnity Company of the United States, and thus procured risks and received money for premiums.” In this count there is no allegation of the person or persons from whom the risks were procured and the money received. Nor is there any allegation that the risks were procured and the money received for insurance in any particular company. For the reasons stated, we think both counts in the indictment bad.

jExceptions sustained.

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