State v. Nelson , 29 Me. 329 ( 1849 )

Wells, J.

Whether the title of matron, given to the defendant in the indictment, would have been sufficient before the provision of the statute, c. 172, § 38, it is not necessary to consider, for the statute prohibits the quashing of any indictment or arresting judgment, for any omission or misstatement of title, occupation, &c., if such omission or misstatement do not tend to the prejudice of the defendant. And it is not apparent, that she was prejudiced, in any manner, by being called a matron.

The decision of the District Court, sustaining the demurrer and overruling the plea, was in accordance with the statute.

The first ground upon which it is claimed, that the judgment should be arrested is, because three distinct larcenies of the goods of different persons are charged in the indictment. But each one of these larcenies is charged in separate counts. And such course is admissible, where the offences are of the same nature. State v. McAllister, 26 Maine, 374.

If the counts are so numerous, as to embarrass the defence, the Court in the exercise of its discretion, may compel the prosecutor to elect on which charge he will proceed. State v. Flye, ibid. 312.

The second ground alleged for arresting the judgment is, that buying, receiving and aiding in concealing stolen goods, constitute three distinct and separate felonies, which are all embraced in one count.

The statute, c. 156, § 10, makes the buying, receiving, or aiding in the concealment of stolen goods, but one offence, although it may be committed in three modes. If it is charged in all three of the modes, still but one ofibnce is committed, and only one punishment can be inflicted. The offence is established by proof of either of the modes, but the penalty is the same for one as for all three of them. There is, therefore, but one crime charged. The eleventh and twelfth sections of the same chapter, speak of it as but one offence. The language of the twelfth section is supposed to be at variance with this construction. It provides for an increased punishment in case of the commission and conviction of the crime, subsequently to the first conviction, “ or if any person, at the same term of the court, shall be convicted of the three distinct acts of buying, &c.” he is liable to a greater punishment than is provided in the tenth section.

But taking the whole statute together, the meaning of the Legislature must be, that if any person is convicted, at the same term of the court, of three distinct and independent offences under the tenth section, then the increased punishment is to follow upon such convictions. Any person convicted of “ three distinct acts” or three distinct offences, is made amenable to a more severe punishment than if guilty of but one offence.

A like construction has been put upon a similar statute in Massachusetts. Stevens v. Commonwealth, 6 Metc. 241.

It is contended, that the count under consideration is bad, because the defendant is charged with receiving the goods of three different persons, in the same count. But this ground is not contained in the motion. And if, after the exceptions are overruled, a new motion should be made, as was done in State v. Soule, 20 Maine, 18, it could not avail the defendant. For in the first three counts, the names of the owners are separately alleged, and the ownership could have been tried in each count. Besides, it appears by the indictment, that the defendant received all the goods, at the same time. And in indictments for larcenies, where the goods of several persons are taken at the same time, so that the transaction is the same, one count may embrace the whole. 3 Chit. Crim. Law, 723. No reason is apparent why the same rule, should not prevail for receiving stolen goods, as for larcenies.

It is generally true, that but one offence can be charged in one count. Commonwealth v. Symonds, 2 Mass. 163.

There is but one offence alleged in this count, although the goods of several are received at one time. If the owners should be so numerous as to prejudice the defence, the Court, in its discretion, might limit the prosecution to such bounds as justice would require. Commonwealth v. Eaton, 15 Pick. 273; Commonwealth v. Tuck, 20 Pick. 356.

The third ground, for which an arrest of judgment is claimed, is, that the names of the owners of the goods are not stated in the count, charging the defendant with the buying, receiving, &c. The goods stolen, the names of the owners and the person by whom stolen, are stated in the first three counts; in the fourth, which is the one in question, the defendant is charged with receiving “ the goods and chattels aforesaid, to wit,” then follows an enumeration of the same goods, which had been described in the first three counts. And after the enumeration is finished, it is further alleged, “ so as _ aforesaid feloniously stolen, &c., by the said John D. Williams, in manner aforesaid,” &c.

One count may refer to another to save unnecessary repetition. The charge of receiving the goods and chattels aforesaid, so as aforesaid stolen by Williams, carries with it the allegation of that, which had been previously declared to be an incideut to the goods, that is, the property of the persons named. The defendant could not have been convicted of receiving the goods of any other persons, than those which were named. If she had been, she would have been convicted of receiving goods which were not, “ the goods and chattels aforesaid.” The phrase “ goods and chattels aforesaid,” must be understood to declare, that they were those previously stated, as being the property of the persons named.

It is moreover contended in the fourth place, that the judgment should be arrested for omitting to allege, that the offence was not committed by the coercion of the husband.

It appears by the plea in abatement, that the defendant, at the time of the commission of the offence, was a married woman, and the demurrer admits such to be the fact.

It is true, that the matrimonial subjection of the wife to her husband exonerates her from responsibility, for certain crimes committed by his coercion or in his company, but where she offends alone, she is responsible for her offence, as much as any feme sole. 4 Black. Com. 29. A.nd she may be indicted for receiving stolen goods of her own separate act, without the privity of the husband. 1 Russell on Crimes, 16.

Where a feme covert is liable in the same manner as if sole, there can be no necessity of alleging in the indictment a negative allegation, that she did not act under the control or coercion of the husband. If such were the case, she could show it in defence, by proof exhibited on trial. And if she were not described in the indictment as a feme covert, she would have the right to show, that such was her condition, whenever that fact became material to her defence.

The exceptions are overruled, and the case remanded to the District Court.