Inhabitants of Cushing v. Inhabitants of Friendship , 89 Me. 525 ( 1897 )

Haskell, J.

This is an action under R. S., c. 142, § 5, to recover the sums paid for the support of two boys in the reform school, by the plaintiff town, — from whence they were committed, —of the defendant town, where they had their pauper settlement at the time.

To sustain the action, it must be shown that the boys were committed on conviction of an offense for which the statute authorized a recovery for their support of the town whose paupers they were. The remedy is given by statute, and without which there is none; therefore, the terms of the statute must be complied with. To maintain this action the plaintiff must prove —

I. That the boys were convicted of truancy, and committed to the reform school-therefor, while having their residence in plaintiff town.

II. That plaintiff has paid to the superintendent of the reform school the expenses of the boys’ sustenance at the rate of not over one dollar per week, each.

III. That at the date of commitment to the reform school the boys’ pauper settlement was in defendant town.

Does the record support a conviction of truancy ? That is the word used in the statute, R. S., c. 142, § 3. Upon conviction thereof, sentence may be to the reform school, at the cost, for subsistence and clothing, of the town where the boy resided when committed. Now truancy is an offense unknown to the common law, and the elements which constitute the offense must be found in some ordinance, by-law or statute. The plaintiff town had neither ordinance nor by-law on the subject, so the statutes must be looked to for a definition of the offense. This definition may be found in the public laws of 1887, c. 22, as amended by the act of 1893, c. 206. It applies to boys, between ten and fifteen, who refuse to attend school and wander about the streets and public places during the hours when the school of which they are legally scholars is in session.

The complainant charges that the boys, of proper age, “are truants from school, and will not attend nor have not attended any school during this year, as required by R. S., c. 34, § 148, against the peace of the state and contrary to the form of the statute in such case made and provided.” Now there is no section 148 of chapter 34, and that chapter relates to auctioneers. The reference is to a statute that does not exist, and is like pleading an impossible date, which is no date, State v. O'Donnell, 81 Maine, 271, and therefore may be disregarded, leaving the complaint to read without the statute reference. “Truants from school, and will not attend nor have not attended any school during this year as required by revised statutes against the peace of the state and contrary to the form of the statute in such case made and provided.” This reading does not charge the offense in the most artistic form, but it makes in common phrase a charge of truancy as defined by statute.

It must be remembered that the complaint should not be judged of as upon objections made by the defendants named therein. Very likely it might have been quashed on their motion, but that does not matter here. Upon it they were convicted of truancy and committed to the reform school, and must be there supported by somebody.

To prove the conviction, the record of the court is the only competent evidence. The mittimus is merely a recital of the record and is secondary, if the record be in existence, and is no more evidence of it than an execution is proof of the judgment in a civil action. It was error, therefore, to hold the mittimus conclusive evidence of the conviction recited in it — a fortiori, to exclude the record altogether. But, inasmuch as the record is before us as a part of the exceptions, we may determine its validity; and if valid and sufficient to sustain the conviction, the defendant has not been aggrieved by the ruling excepted to, for on a new trial the result must inevitably be the same.

It is competent evidence to prove the conviction for “truancy,” and does prove it. The conviction could not have been for any other offense, and that offense is charged in common language sufficiently plain to have its meaning understood, and while .the conviction stands, the plaintiff town is liable for the support of the boys in the reform school, if they resided in plaintiff town when they were committed.

It is said that the complaint and conviction are void because .the former was not made by a truant officer as such, who alone is authorized by statute to make such complaints. The complainant signed the complaint “truant officer”, and whether this be a sufficient compliance with the statute it is unnecessary to here decide. We place.our decision upon the ground of the existence of a judgment, rendered by a court having jurisdiction of the parties and of the offense upon a complaint that shows for what the conviction was had, and while it stands unreversed, it is conclusive upon the parties in this action. It has served its purpose to commit the boys to the reform school, and it may also serve to charge the town liable for their support.

The plaintiff contended that the boys had a settlement in defendant town, derived from their father who had acquired one by five years consecutive residence. Defendant contended that this residence was interrupted by the father having lived in another town for a short period meantime. Plaintiff called the father as a witness, and was allowed to inquire of him what his intention was when he took his family from defendant town. To the admission of this testimony defendant has exception; but it is not well taken. It is always competent to ask a witness what, his motive was when material to some act of his own. It is not competent to prove the declarations of a person not a party to the suit as to his motive or intent concerning acts of his own, unless the declaration be a part of the act and explanatory of it. Then it becomes admissible as res gestee. Belmont v. Vinal Haven, 82 Maine, 524; Etna v. Brewer, 78 Maine, 377.

Exceptions overruled.