Galeo v. State

Emery, C. J.

The plaintiff in error pleaded guilty to an indictment charging that he "did wilfully, maliciously and feloniously place upon the track of the Atlantic Shore Line Railway Railroad seven large stones to the obstruction of said railroad track, whereby the lives of many and sundry persons whose names are unknown were then and there endangered,” etc. Upon this indictment and plea he was sentenced to imprisonment in the state prison for the term of eleven years. He now brings this writ of error to reverse or annul that sentence. Inasmuch as the sentence was imposed at the May term, 1908, of this court in York County, and the writ of error was not brought till July, 1910, it may be assumed, though not expressly stated in the record, that the plaintiff was committed in execution of the sentence and is now in prison under it.

Among the assignment of errors is the want of authority to impose the sentence of imprisonment in the state prison for the offense to which the plaintiff pleaded guilty. The state claims the necessary authority solely under It. S., ch. 119, sec. 5, which authorizes the imposition of such a sentence upon conviction of the offense of placing obstructions on railroad tracks "with intent that any peí-son or property passing on the same should thereby be injured.” But that intent, being specifically made by the statute a part of the definition of the offense, must be alleged and proved, or confessed, to warrant a conviction and sentence under that statute. It is only when the obstructions are placed on the track with that intent, that the offense defined in that statute is committed. The case is well within the settled rule that when a specific intent is a part of the definition of an offense, that specific intent must be alleged and proved, or confessed, to warrant conviction and sentence for that offense. Smith v. State, 33 Maine, 48 ; State v. Gurney, 33 Maine, 527 ; State v. Robinson, 33 Maine, 564 ; Barnett v. State, 36 Maine, 198. The indictment to which the plaintiff pleaded guilty, and upon which he was sentenced, did not contain any allegation of the intent specified in the statute to be a part of the offense therein defined. It follows that the sentence imposed was not authorized by law.

The cases cited by the State do not seem to us applicable to this case. There is a difference between doing an act intentionally and doing it with a specific intent. The case Com. v. McLaughlin, 105 Mass. 460, upon which much stress is laid, was the case of an indictment for an attempt to commit an offense. The decision was only that the intent of the attempt was sufficiently alleged.

The State further claims, however, that the plaintiff having pleaded guilty to the indictment instead of pleading in abatement, or demurring, the question of the sufficiency of the indictment is not open to him on writ of error after sentence. The answer is that it is not the indictment but the sentence that the plaintiff attacks. He only confessed the allegations in the indictment. He now raises the question that those allegations did not describe or make out an offense for which the court could lawfully impose sentence of imprisonment for eleven years in the state prison. We think he is entitled to raise that question after sentence and by writ of error. Smith v. State, 33 Maine, 48.

The judgment of the court upon the plaintiff’s plea must be reversed, and as the plaintiff by his imprisonment under the sentence has expiated the offense, if any, of which he could be convicted under the indictment, he must be discharged from his imprisonment and go without day.

So ordered.