State v. Sweetsir , 53 Me. 438 ( 1866 )

Dickerson, J.

Indictment for polygamy. The indictment was found, and the offence alleged to have been committed in the county of Kennebec. The respondent filed a plea in abatement to the jurisdiction of the Court, alleging that, at the time of the finding of the indictment, he resided in Biddeford in the county of York, and that he was apprehended in said town.

The attorney for the State filed a replication to the plea in abatement, traversing the facts set forth therein, and concluding with an offer to verify the same, and praying judgment, and that the respondent might be held to answer to the indictment. To this replication the respondent demurred, but the Court overruled the demurrer, and tlxe respondent excepted.

It was optional with the attorney for the State to demur to the plea, or file a replication. In the one case the issue would be one of law for the Court, and in the other one of fact for the jury. Having elected to traverse the facts alleged in the plea in abatement, the attorney for the State should have tendered an issue to the country. The question of fact was exclusively for the jury; there was no question of law raised by the pleadings for the Court to pass upon until after the jury had settled the facts. The conclusion of the replication is in the form appropriate for the conclusion to a demurrer. It calls for the judgment of the Court upon an issue of fact which it is the province of the jury alone to determine. There was no issue tendered to the country. The respondent could not properly join the issue tendered.

But in looking into the plea in abatement,'it is found not to contain sufficient ground for abating the indictment, if the facts alleged thereiu are true. The attorney for the State was not called upon to file a replication to the plea in abatement, but might safely have demurred to it. R. S., c. 124, § 4, provides that " the indictment for such offence may be found and tried in the county where the offender resides, or where he is apprehended.” This provision of the statute is permissive and not mandatory; it is not in derogation of the common law right of indictment and trial in the county where the offence is committed, but rather an enlargement of the jurisdiction of the Court. There is no intimation in the statute of any purpose to annul the requirement of the common law in this respect. On the contrary, the use of "may” instead of "-must” or "shall” implies an intention, not to deprive the Court of its existing jurisdiction, but to give it enlarged powers over the same subject matter.' In construing statutes, may is sometimes' held to meau shall, but this is done only when it is the obvious meaning of the statute to' command and not simply to permit a particular thing, or to exclude other rights or remedies, and not to grant additional ones to those already existing. The plea was therefore bad, and judgment must be awarded against the party who committed the first error in pleading.

Exceptions overruled.

Plea and replication bad; —

Respondeas ouster.

Appleton, C. J., Kent, Walton, Barrows and Danforth, JJ., concurred.