Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-12-08

| State vs.. John Doran. Rescript by
WhitehouSe, j.
| 1t Is alleged in the Indictment that
the defendant with force and arms
| the car numbered 1856 of the Boston
& Maine Railroad felonious-
ly, wiIfully and maliciously did at
tempt to break and enter for the pur-
pose of committing a felony The in
| dictment contains neither a descrip-
| ton Of the overt act done by the ac-
cused in attempting to commit the
crime charged, nor d specification of
the particular felony which the de-
| PENDANT is charged with attempting to
| commit, after breaking and entering
| the car.
Where tho offense is created by
statute and thu facts constituting il
are fully set out. il is undoubtedly
| sufficient to charge the offense in the
language of the statute without fur
Their description. But lin all criminal
prosecutions the accused shall have a
right to demand the nature
and cause Of the accusation" Const.
of Me, Art. !. Sec. 6. He has a right
to insist that the facts alleged to con-
| stitute crime shall be stated in the
| indictment against him with that rea-
sonable degree of fullness, certainty
and precision requisite to enable him
TO meet the exact charge against him.
and to plead any judgment which may
be rendered upon it in bar of a subse-
quent prosecution for the same Of
| Tense. Hence if a statute creating an
offense fails to set out the facts con-
~ - -
accused of the precise nature Of the
charge against him a more particular
! statement of the facts will be required
in the indictment. And where d mere
| generic term is used, or where the
| words of the statute by their general
! it: may embrace cases which fall
within the terms but not within the
spirit or meaning OF it, the specific
facts must he alleged TO bring the de-
PENDANT precisely within the inhibi-
ton Of the law" "'Attempt' is a
term peculiarly indefinite. 1t has no
prescribed legal meaning. 1t relates
from its nature to unconsummated Of
fenses. Attempts may be
merely in conception or in preparation.
with 10 casual connection between the
attempt ANA any particular crime.
In an Indictment for an at
| tempt il is essential to aver that the
| defendant did some act which directed
! by q particular intent, which must be
avcrred, would have apparently result
ed in the ordinary and likely course of
| things i'm a particular crime" To
! constitute an attempt there must be
something more than mere intention
| I1r 1OAJl h.t
act moving directly toward the COM
mission Of the offcnse after the
! preparations are made. AN ndict-
ment for an attempt to commit
! burglary must not only allege the at
tempt and intent but it is essential
that it also allegr the overt acts re
lied upon as constituting the attempt. :"
Again, as already noted, the indict-
ment fails to specify the particular
felony which. it is alleged, the de-
PENDANT intended to commit. This is
another fatal defect. The word felony
is not the name of any distinctive Of
Tense. 1t is a generic term employed
| to distinguish certain high crimes. as
murder. robbery, rape. arson and lar
| ceny, from other minor ones known as
misdemeanors. The averment that
the defendant broke and entered the
car for the purpose of committing
felony wholly failed to apprise him of
the specific offense which it is claimed
he intended to commit. Whether it
would he contended by the State that
he intended to commit murder, or rob-
berry, or rape, or larceny. he is not in
formed. Upon the trial of such an in
=. H. ;,hI 70 no
pressed by the introduction of evidence
which he could not anticipate or be
prepared to meet. The authorities
are substantially unanimous in support
| of the proposition that such an allega- :
ton is wanting in the precision and
certainty required by the constitution
and the rules of criminal pleading.
Though in burglary and statutory
house breaking the intent, as defined
by the law is simply to commit a
felony, it is not sufficient in the indict-
ment to follow these general words
but the particular felony intended must
b. specified" According to the great
weight of authority, however. as we'll
| as upon sound reason, the Interior fell
| ony intended need not be set out as
fully and specifically as would be re-
quired in an indictment for the actual
commission of such felony. 1t is
ordinarily sufficient to state the in
| tended offenSe generally as by alleging
an intent to steal. or commit the crime
of larceny, rape or arson. Nor is it
necessary under our statutes. in the
case of an alleged intention to commit
larceny, to aver that the property in
tended to he stolen exceeded 500 in
value.
The indictment being clearly in
sufficient for the reasons above set
forth under the third specification con-
tanned in the defendants motion, it is
unnecessary to consider the causes as
signed in the first and second specifca-
tons.
Exceptions sustained.
Motion sustained.
Judgment arrested.
Reed Dec. 5th 1904.
| ~