State v. Andrews , 17 Me. 103 ( 1840 )

The opinion of the Court was by

Weston C. J.

The Supreme Judicial Court had jurisdiction formerly of crimes and misdemeanors generally. And the C. C. Pleas had concurrent jurisdiction of certain offences, not of a high and aggravated character. By the statute of 1823, c. 233, the concurrent jurisdiction of that court was enlarged, but that of the Supreme Court was not restricted. But by the stat. of 1836, c. 196, the jurisdiction of the Common Pleas, where it was before concurrent, was made exclusive. The count in the indictment, upon which the defendant was acquitted, was exclusively cognizable in the Supreme Court; and the other counts, upon which he was convicted, were exclusively cognizable in the Common Pleas.

By a subsequent stat. of 1836, c. 241, § 4, it was provided, that for all offences, exclusively cognizable in the Supreme Judicial Court, the grand jury might, in their discretion, insert in the indictment one or more counts for any less offence, dependent upon the same facts, and if the accused shall be convicted upon either count in such indictment such verdict may be accepted and recorded in the court, where such trial shall he, and every such offender shall be sentenced and punished accordingly. As the trial in such case could only be in the Supreme Court, it appears to us, that no other sensible construction can be given to this provision, than that it has the effect to invest this Court, in this incidental manner, with jurisdiction over these less offences, thus charged, although generally, and by the former law, unless combined with other charges of a moro aggravated nature, they might have been made exclusively cognizable in the Common Pleas. It is manifestly the intention of the legislature, that the sentence and punishment, which is to follow the conviction, should be adjudged and imposed by the court receiving and recording the verdict.

In this predicament stands the indictment under consideration. In the first count the grand jury charge an offence, exclusively cognizable in this Court. In the other counts, upon which the conviction followed, offences of the same class, but of a less aggravated character, are charged. The gravamen in the first count consists in being possessed of ten counterfeit bills, of the Kenduskeag Batik, knowing them to be such, with intent to utter them as true. No conviction upon this count could legally follow, unless it was proved that he was possessed, with the criminal intent charged, of as many as ten such bills. There being a failure of proof to this extent, the defendant was acquitted upon this count. But he was convicted upon the other counts, which taken together, charge that he was, at the time averred in the first count, possessed of seven such counterfeit bills, with the same criminal intent, consummated by actually uttering and passing some of them as genuine. We are of opinion, that it may be well intended, that these seven bills were part of the ten, set forth in the first count; and therefore that the other counts were dependent upon the same facts,upon which the first was based. And the motion in arrest of judgment is accordingly overruled.