State v. Arsenault , 106 Me. 192 ( 1909 )

Peabody, J.

The olfense charged against the respondent is keeping a common nuisance defined by R. S., chapter 22, section 1, based upon certain distinct acts and conditions relied upon by the State as constituting the nuisance.

The respondent filed a demurrer to the indictment which was overruled by the presiding Judge, and the question is before the Law Court on his exceptions.

He contends that the indictment is defective because it does not allege that he kept a certain place and that the place was used for illegal purposes. The statute declares that all places used for certain purposes or where certain acts are done and conditions exist, are common nuisances. All mala prohibita specified in the statute need not be alleged or proved to constitute a nuisance. If the indictment alleges any one of these causes, and charges the respondent with keeping and maintaining such a place, it is sufficient.

It is here charged (among other things) that Benoit Arsenault, a certain tenement occupied by the said Benoit Arsenault as a dwelling house, unlawfully did use for the illegal keeping and the illegal sale of intoxicating liquors. These words are unambiguous and distinctly allege that he used the tenement which he occupied for a dwelling house, for the illegal keeping and the illegal sale of intoxicating liquors.

Only one offense is charged in the indictment, that of keeping a statutory nuisance, although several causes constituting it are set out. If the respondent kept a place used for the illegal sale of intoxicating liquors, a place used for the illegal keeping of intoxicating liquors, or if he kept a place affected by all the prohibited acts and conditions mentioned in the indictment, he kept a common nuisance. The penalty is no less for keeping a place for one of these illegal purposes than for all. A conviction for keeping the place created a public nuisance by any one of these causes, would be a bar to any other indictment for any or all others specified in the statute for the period of time covered by the indictment. State v. Lang, 63 Maine, 215; State v. Stanley, 84 Maine, 555; Commonwealth v. Kimball, 7 Gray, 328.

These terms charge him with customarily doing acts in connection with his dwelling house prohibited by law. No words can more clearly express the keeping and maintaining of a place for unlawful purposes than the words "did use.” "‘Whoever keeps or maintains’ will apply therefore either to the one who controls the occupation and procures or permits the illegal use; or to one who engages in the illegal use and thus maintains or aids in maintaining the public nuisance.” Commonwealth v. Kimball, 105 Mass. 465.

If this definite expression of the respondent’s use of the place might be considered as excluding or leaving indefinite the charge of his keeping or maintaining the dwelling house for the other things predicated of the place, they may be rejected as surplusage. Commonwealth v. Pray, 13 Pick. 359. But we think these matters are well pleaded. The indictment states that the dwelling house occupied by the respondent was a place where other illegal practices were carried on, which by statute constitute a common nuisance, and thereupon alleges that he kept and maintained such a nuisance. This is sufficient it being unnecessary to allege in terms that he did, knew of, or consented to the acts and conditions prohibited. State v. Stanley, supra; State v. Ryan, 81 Maine, 107.

Exceptions overruled.