State v. Dorr , 82 Me. 341 ( 1890 )

Emery, J.

The respondent mates several objections to the indictment:—

1. That his offense is alleged to be contrary to the form of the “statue,” instead of contrary to the form of the “statute.” If this objection could ever have prevailed, it cannot now, since the enactment of R. S., c. 131, § 12, which provides that the entire omission of the words “contrary to the form of the statute, etc.,” shall not vitiate the indictment.

2. That the indictment does not specify the particular kind of intoxicating liquor he unlawfully sold. No such specification is necessary. The statute in terms forbids the sale of intoxicating liquor. Proof of sale of any intoxicating liquor, proves the offense. The state need not allege more than it need prove. State v. Wyman, 80 Maine, 117, 118.

3. That in alleging a prior conviction of a similar offense, the time of such prior conviction is stated to be in the year 1088, and hence before any state of Maine existed to be offended by such a sale. This clearly is not a sufficient allegation of a prior conviction. It is an allegation of an impossibility. There could not have been any such conviction. The conviction alleged being impossible, the whole allegation should be disregarded.

But the insufficiency of the allegation of a prior conviction, does not vitiate the indictment as to the main offense charged. The sale of liquor now complained of is sufficiently alleged. By his demurrer, he has confessed an offense properly charged against Mm; and no reason appears why he should not be adjudged guilty of that offense, whatever may have been the fact as to prior conviction. The offense he now stands charged with, is the same in kind and grade in either ease. There might be a difference in the degree, but not in the nature of the penalty.

The indictment therefore can be sustained, but the state can not have any judgment that the respondent has been before convicted. State v. Conwell, 80 Maine, 80.

Exceptions oven'uled. Judgment for state for first offense.

Peters, C. J., Virgin, Libbey and Foster, JJ., concurred.