State v. Jones , 115 Me. 200 ( 1916 )

King, J.

The respondent was found guilty by the jury under an indictment charging him as a common seller of intoxicating liquors, and he brings the case to this court on exceptions to the overruling of his moion in arrest of judgment, and to the refusal to give two requested instructions.

1. In support of his motion in arrest of judgment he contends that the indictment is bad because it avers that the offence was committed on the first day of January, 1915, “and continually thereafter up to the day of the finding of this indictment.” We think there is no merit in that contention. The offence being a continuing one was properly set out with a continuando, and the form of words used in the indictment for that purpose was appropriate and sufficient. It covers a definite period of time, and there is no uncertainty about it. It is more definite than the allegation, “on divers other days and times between that day and the time of finding of this indictment,” which has often been employed and held sufficient in this and other states. The form of words used in alleging the continuando in the indictment in the present case is quoted as an appropriate form of allegation in Bishop on Crim. Procedure, Vol. 1, sec. 394.

The respondent claims, however, that the form of indictment set forth in sec. 72, c. 29, R. S., which alleges the continuando in the words “and on divers other days and times between” the particular day stated and the day of the finding of the indictment, should have been used. But it is not imperative that the statute form of indictment should be used. The Legislature did not so provide. It declared only that the “forms herein set forth . are sufficient in law.” The provision of the section that the averments in the forms set forth “are sufficient in law” does not preclude the government from using other averments that are sufficient in law to constitute a good indictment. State v. Reed, 67 Maine, 127, 129.

2. The offence of being a common seller of intoxicating liquors may be established by the acts of the party done on a single day. Com. v. Gardner, 7 Gray, 497. And where, as in this case, the offence is alleged to have been committed on a particular day “and continually thereafter up to the day of the finding of this indictment” such allegations may be supported by proof of the commission of the offence on the particular day named or during any part of the period covered by the continuando. State v. Small, 80 Maine, 452. Com. v. Wood, 4 Gray, 11.

The requested instructions were, therefore, rightly overruled. They asked that the jury be instructed that under the indictment the government was bound to prove that the respondent was a common seller “without reasonable cessation, unceasingly and continuously” during the entire period named, and that 'the offence charged in the indictment “should be construed to mean the sale of intoxicating liquors each and every day between the dates set forth in the indictment.” Such instructions would have been clearly erroneous. “Proof of the commission of the offence charged, during any portion of the time alleged in the indictment, would warrant a conviction. It is not necessary to prove it to have been committed during the whole time charged, although a conviction or acquittal, as already stated, would operate as a bar to a presecution ■for the same offence, during the entire time alleged.” Com. v. Wood, supra.

Exceptions overruled.