STATE v. WARNER
12/26/1967
, defendant's counsel said:
"I move to strike both the hearsay what the officer earlier
said and the defendant's reaction your Honor on the grounds of
admission by defendant stated before."
The language used by counsel was highly ambiguous. Did counsel refer to the officer's statement last above quoted and the defendant's reaction of shaking his head yes — or did he, as defendant apparently now contends, refer to the testimony concerning the defendant putting his head down? The answer is by no means clear to us from a study of the record. The presiding justice cannot be expected to rule upon past testimony unless the motion to strike clearly identifies the portion of testimony to which counsel has reference. Glassman, Maine Practice, 512; McKown v. Powers, 86 Me. 291, 294-295, 29 A. 1079, 1081 (1894); Stevens v. William S. Howe Co., 275 Mass. 398, 176 N.E. 208 (1931). We cannot say that the presiding justice was clearly informed as to which answer counsel referred in his motion to strike.
The effect of the words "and he put his head down" was not prejudicial in any event. Immediately following the excerpts of testimony quoted above, the record shows that the officer asked the defendant further questions concerning his activities of the evening and the defendant answered his questions. The defendant had the right to remain silent. Instead, he chose to answer the officer's questions. He cannot complain that reference to his brief silence is prejudicial when, following this silence, he proceeded to answer the officer's questions voluntarily. There was no infringement of defendant's constitutional rights. Neither is any violation of the hearsay rule apparent to us.
Appeal denied.
Respectfully I must disagree with the majority opinion on the first point of appeal. Granting that Rule 7(c) Maine Rules of Crim.Proc. "is designed to simplify criminal pleading * * *. Of course, every element of the offense must be charged in the indictment." Section 7.3 Maine Practice, Glassman.
"When the statute both creates and defines an offense not known
to the common law, the * * * indictment must, of course, follow
the statute * * *."
Section 21, Directions and Forms for Criminal Procedure,
Whitehouse and Hill; State v. Munsey, 114 Me. 408, 410,
96 A. 729; and Smith, Petitioner v. State of Maine, 145 Me. 313, 318,
75 A.2d 538.
The offense of reckless homicide caused by the operation of a vehicle with reckless disregard for the safety of others and thereby causing the death of another person prescribes that such death must be within one year. If the victim of the accident should survive the experience by a year and a day, the statute would not apply. The allegation of the death of the victim within one year from the date of the collision is an essential fact constituting the offense. The omission to charge this fact is a fatal defect in the indictment and the conviction should be reversed. I would not reach the other points of appeal.
MARDEN, Justice (dissenting).