Briggs v. State , 152 Me. 180 ( 1956 )

Murray, A. R. J.

In this case, a writ of error, the justice before whom it was heard dismissed the writ. To this ruling the plaintiff in error excepted. The case is before this court on the exceptions. The writ assigned the following errors:

1. The complaint was brought under R. S. 1944, Chapter 19, Section 121, which is now R. S. 1954, Chapter 22, Section 150, charging plaintiff in error with attempting to operate a motor vehicle, to wit: an automobile, while under the influence of intoxicating liquor. Said complaint nowhere alleges any overt act committed by plaintiff in error to constitute such attempt and is insufficient in law.

2. The complaint alleged no offense committed by plaintiff either at common law or under any statute of the State of Maine.

3. The court lacked jurisdiction to try and sentence the plaintiff.

Hearing was had in Houlton Municipal Court, respondent was found guilty, sentenced, and appealed to the Superior Court. In Superior Court after hearing, he was again found guilty, sentenced to pay fine and costs, which he has paid.

Later this writ of error issued, and as we have before said, it was dismissed. The record of both the Municipal Court and the Superior Court were before the justice who heard the writ and are before us.

The error which we shall pass upon is that designated by the plaintiff in error as Number 1; if it is sufficient in law, Number 2; and Number 3 would be the only result which could follow.

“Nothing is presented to a court of errors but a transcript of the record.” Nissenbaum v. State, 135 Me. 393-396. “At common law, the record of a judgment was as the judgment roll.” Nissenbaum v. State, supra, Freeman on Judgments, Section 75.

“Writ of error is the proper remedy for the correction of error on the record. Such writs lie, for errors in law, only for defects evident upon the face of the record.” Nissenbaum v. State, supra, Page 396.

The plaintiff in error says that while the Statute is, “Whoever shall operate or attempt to operate a motor vehicle while x x x” and the charge in the complaint is in the words of the statute, that this is not sufficient that “attempt to operate” is setting out a conclusion, and the complaint should set out facts and not a conclusion. In other words, it should state what plaintiff in error did which was an attempt to drive.

He cites many cases which appear to bear out his contention, but they are cases in which somewhat similar defects were taken advantage of by demurrer.

A crime is charged. The words of the statute are used in charging the crime, but the plaintiff in error says the words in the statute do not describe the crime with certainty. At the most, the charge is not made with the certainty to which the plaintiff in error is entitled. He could have taken advantage of this by demurring, or he could have waived it by going to trial. He chose the latter course, so we are not called upon to decide this as if we were doing so upon a demurrer.

In State v. Thomes, 126 Me. 163, respondent was charged with larceny. The property stolen, money, was not sufficiently described. Respondent demurred and demurrer was sustained.

In State v. Woodworth, 151 Me. 235, respondent was charged with embezzlement. He, after verdict, in Law Court argued that no crime was charged, because there was no description of money embezzled. The court held: “The absence of an allegation in this indictment of a particular description of the money alleged to have been the subject of embezzlement does not vitiate the indictment as this omission was cured by verdict,” and court sites 27 Am. Jur. Section 191, Page 736, and further said, “It is equally well settled, however, that defects which are merely matters of form and not of substance, ambiguities, etc., in an indictment or information are cured by verdict; objection to such defects if made after verdict, come too late, regardless of the fact that they might have rendered the indictment bad had they been seasonably taken.”

1. We hold that what plaintiff in error points out as error is, at most, uncertainty and has been cured by verdict.

2. That the plaintiff alleges an offense, and attempt to drive an automobile, etc.

3. That the court had jurisdiction to try and sentence the plaintiff in error.

Exceptions overruled.