State v. Conwell

Indictment. Intoxicating liquors. Prior conviction. A prior conviction is not well laid at a term of court wliicli ended before the certificate of decision was received from the law court in the cause.

On report from superior court. Search and seizure complaint under the liquor law. The facts are sufficiently stated in the opinion. lievised Statutes, c. 27, § 27 abrogates the common law technicalities of pleading in a great measure, and provides that, in such cases as this among others, " it is not requisite to set forth particularly the record of a former conviction, but it is sufficient to allege briefly, that such person has been convicted of a violation of any particular provision or as a common seller, as the case may be.” For the construction see State v. Wentworth, 65 Maine, 247 ; State v. Gorham, 65 Maine, 273 ; Dolan v. Hurley, 69 Maine, 576. If all that portion of this allegation, to wit: " at a term . . . . on the tenth day of August, A. D. 1887,” be rejected as surplusage, there will be left an allegation of a prior conviction, in all respects identical in force, and answering in every condition of the Statute provision, with those set out in State v. 'Wentworth, supra, in State v. Gorham, supra, and in Dolan v. Hurley, supra. That this portion of the said allegation may be so rejected as surplusage, see Yol. 1, Bish. Crim. Proc. §§ 229, 230, which says, " whatever is immaterial to the indictment, is surplusage, which may be wholly disregarded or rejected.” Also see State v. Noble, 15 Maine, 476 ; State v. Staples, 45 Maine, 320 ; State v. Jackson, 39 Maine, 296. A conviction is had on a criminal case when the jury finds the defendant guilty, or the defendant confesses or pleads guilty. Blackstone, Yol. IY, § 362. " Where the time when a fact happened is immaterial, and it might have happened at another day, then, if alleged under a scilicet, it is absolutely nugatory and therefore not traversable ; and if it be repugnant to the premises, it will vitiate, but the scilicet itself will be rejected as superfluous and void.” Yol. I, Bishop’s Crim. Proc. § 257 ; Gould on PI. c. 3, § 40. cited: People v. Jackson, 3 Denio, 101; Grickton v. People, 6 Parker, C. R. 363 ; Mdllett v. Stevenson, 26 Conn. 428 ; Wharton’s Cr. Ev. ( 9 ed.) 14, 15.