Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1916-10-03
Waldo County Case

Waldo County Case
The following rescript drawn by AS
sociate Justice George F. Haley of
Saco in the Waldo county case of
State Of Maine VS.. Walter c. Mahoney
has been received at the Office of the
clerk of Kennebec county:
Waldo county. State of Maine VS..
Walter c. Mahoney. Rescript, Haley,
J.
An indictment for perjury. before
this court on respondents exceptions
to the overruling of his demurrer to
the indictment; with the right to plead
anew if the exceptions are overruled.
There are four counts in the indict-
ment, and the demurrer is general and
applies to all Of them. In criminal
pleading there Is no distinction be-
tween general and special demurrer.
Formal defects in indictments and 9TH
er criminal prosecutions remain proper
subjects of general demurrer, as at
common law.
The demurrer regularly admits no
other facts than those which are we'll
pleaded; and by the common law,
which does not distinguish between
the offices of demurrer assigning a
special cause, and one assigning none,
demurrer of either kind confesses no
other allegations, in general, than such
as are sufficient, both in substance and
IN form. For facts insufficient in sub
stance, cannot affect the right of the
cause: and material facts if ill pleaded
and demurred to even generally, are by
the common law as unavailing as if
they were altogether immaterial.
This indictment is for the offence of
perjury, as set forth in section l of
chapter 1913 of the Revised Statutes,
and 1t is the claim of the State that
the indictment follows the form pre-
scribed by section four of the statute.
1t Is the claim of the respondent that
the first count in the indictment is bad
for uncertainty. The first count sets
out two pages of testimony alleged to
be material and false, but contains no
assignment of perjury in any particu-
lar part Of the testimony.
The question is whether the indict-
ment sets forth the facts with suf-
ficient particularly and certainty to
inform the accused of the offense with
which he is charged. Does it portray
the facts which the State claims con-
stitutes the alleged transgression so
distinctly as to advise the accused of
the charge which he has to meet, and
to give him fair opportunity to pre-
pare his defense. so particularly as to
enable him to avail himself of a con-
viction or an acquittal in the defense
of another prosecution for the same
offense.
Tested by the above rule the first
count in the indictment is void for un-
certainty. The testimony set forth in
the first count contains many state
ments of facts, some Of which must be
true, or not susceptible. of being called
material. and the respondent was not
informed of the specific charge he was
to answer to, and, as said in State v.
Mace, rs Maine, Ga, 1.-The grand jury,
upon the evidence before them, may
have come to the conclusion that the
statement in relation to one of these
matters of fact was false, thereupon
voted to indict the defendant, or the
traverse jury. upon the evidence be-
fore them, may have come to the con-
clusion that the statement in relation
to that matter was true, but that
some Of the statements contained in
the writing were false, and there
upOA COuNlCtcO lhC uclcIluduL VI
perjury in swearing to the latter
statement; and thus the defen-
dant would be convicted upon a matter
in relation to which he had never
been indicted by the grand jury. Sure
ly. an indictment which will permit of
such a result cannot be sustained" AS
the first count in the indictment con-
tains statements of testimony upon
different subjects and refers to differ
ent papers and different persons, it
does not set forth the alleged false
testimony with that reasonable degree
Of fullness. certainty and precision
requisite to enable the respondent to
meet the exact charge against him, and
is bad for uncertainty.
It Is only necessary to consider one
Of the objections to the other three
counts In the indictment. The counts
each contain this allegation: do fur
Their present that Walter c. Mahoney of
Northport. in the county of Waldo
aforesaid. on the seventh day of Janu-
airy, A. D. 1915. appeared as witness
in a proceeding in which said Walter g,
Mahoney and Annie T. Braggs were
parties, and then and there being
heard before tribunal of competentl
jurisdiction. and commit the crime ~
perjury by testifying as follows. ~ The
counts allege that he appeared q
witness the seventh day Of january,
1915. and testified. but where, In what
town, county or state? The rules of
criminal pleading require that an in
dictment shall set forth the time and
place where the crime is alleged to have
been committed. In some cases it Is
sufficient to allege the county; and If a
place Is named in the indictment It is
sometimes sufficient, as the court rec
ognizes the territorial divisions Of the
Women Listen to Reason