State v. Fogg , 107 Me. 177 ( 1910 )

Peabody, J.

This was an indictment against the respondent for maintaining a statutory common nuisance, defined by section 1, chapter 22, R. S.

The case is before the Law Court on exceptions to the rulings of the presiding Justice, refusing to quash the indictment, to give instructions requested, and admitting certain testimony offered by the State, also to parts of the charge to the jury.

The ground upon which the respondent’s counsel requested that the indictment be quashed and based the exception to the court’s refusal, is that it should have been technically found and drawn under section 4 instead of section 2 of chap. 22, R. S. Such objection to the indictment could only be available to the respondent, if at all, by demurrer or a motion in arrest of judgment. State v. Hurley, 54 Maine, 562; State v. Burke, 38 Maine, 574. But the indictment is clearly sufficient in charging the offense defined in secs. 1 and 2 of chap. 22, R. S. State v. Arsenault, 106 Maine, 192 ; State v. Lang, 63 Maine, 215 ; State v. Kapicsky, 105 Maine, 127.

The same reason is urged in support of the exception to that part of the charge which defined what is meant by maintaining a place of resort; but it was not error to instruct the jury that a person having control of a place knowingly allows it, permits it to be used as a place of resort, if he has authority over it to prevent that use or to permit that use and he permits it, then in the eye of the law he maintains it; because the offense charged, being a misdemeanor, all connected with the prohibited acts and conditions are principals. State v. Sullivan, 83 Maine, 417 ; State v. Murdock, 71 Maine, 454 ; State v. Ruby, 68 Maine, 543; Commonwealth v Wallace, 108 Mass. 12 ; and because the words "did keep and maintain,” used in the indictment in reference to the respondent, apply either to one who occupies or to one who controls the occupation and procures or permits the illegal use of the place. State v. Arsenault, 106 Maine, 192 ; State v. Ryan, 81 Maine, 107; Commonwealth v. Kimball, 105 Mass. 465.

It is the further contention of the argument in support of these exceptions, that under the instructions, the respondent might be convicted of aiding in the maintenance of a nuisance, the offense described in sec. 4, and that a judgment rendered against him under the indictment in this case could not be pleaded in bar of a subsequent prosecution for the former offense, and that upon the doctrine of State v. Burgess, 40 Maine, 592, such instructions were erroneous and prejudicial to the respondent. The offenses are undoubtedly distinct, State v. Frazier, 79 Maine, 95; State v. Stafford, 67 Maine, 125; State v. Ruby, 68 Maine, 543; and a conviction of one of these would not bar an indictment for the other, State v. Coombs, 32 Maine, 529.

They are statutory offenses and by legislative intent a person by the same act or group of acts may violate both and be punished for both or, as the court by Emery, C. J., say, "Nevertheless some acts may sometimes constitute both offenses and when they do, the offenses are still different, though the acts are the same, and the perpetrator of the acts may be punished twice, once for each offense.”

The case presents only the questions whether the place described in the indictment was a place of resort where intoxicating liquors were unlawfully kept, sold, given away, drank and dispensed on the third day of July, 1908, and whether the respondent then and there kept and maintained the place.

The respondent admits that on that night intoxicating liquors were there drank or given away, and so the exceptions are in their application confined to the relevancy of evidence as proof of the character of the place, and of the connection of the respondent with it at that time.

The first exception claims that it was error to receive the testimony of witnesses as to what was found in the boarding house and corn shop indicating the presence of intoxicating liquors, the sounds of disturbance on the night of the fourth of July, and the acts of an intoxicated man, who was neither a boarder nor a visitor in the boarding house, as it had not been made to appear that the respondent was in control of the place; but as circumstances consistent with the charge against the respondent relied upon by the State to connect him both with the control of the place and with the acts done and conditions found there on the day in question, we think the evidence was admissible.

By the same rule of evidence the testimony of the expressman, the subject of the second exception, is admissible, as to shipments to the respondent of numerous packages from Dayton, Ohio, up to the night of July third, when whiskey bottles labelled Dayton, Ohio, were found in the boarding house.

As to the fourth exception the court could decline to give the requested instructions "except so far as given in the charge to the jury,” if the substance of those which were correct legal propositions was covered by the charge.

The first was given in substance properly omitting the adverbs "commonly” and "habitually” as mere tautology. According to Webster’s Dictionary the natural meaning of the word "resort” is "a place of frequent assembly.”

The second, requesting a specific negative and affirmative definition of a common nuisance, was substantially given by the Justice by a statement of the transactions of the night of the fourth of July and the day following, upon which the State relies, "that some half dozen more or less of men went there and went there to drink, and that they went there without invitation,” with the concurrent interrogatory lo the jury, "Has that evidence satisfied you beyond a reasonable doubt, that is, given you a clear and abiding conviction that for that time at least, and on the day following that was a place of resort to which men went without invitation, and having gone there, liquors were drank and dispensed?”

The remaining requested instructions were properly refused, the fourth because it could not be given without material modification, and the fifth, sixth, seventh, eighth and tenth because they are not strictly accurate statements of the law of the case.

Exceptions overruled.