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STATE v. WARNER12/26/1967
day of the
commission of the assault upon the deceased, and of course it
appears from the indictment that at the time of its return he
For cases reaching the same result see Milburn v. Commonwealth,
223 Ky. 188, 3 S.W.2d 204, 205 (1928); State v. Caviness,
40 Idaho 500, 235 P. 890, 891 (1925); Brassfield v. State,
55 Ark. 556, 18 S.W. 1040, 1041 (1892); People v. Corder, 306 Ill. 264,
137 N.E. 845, 849 (1922).
No other conclusion could result from the reading of the reference indictment by a defendant of reasonable and normal intelligence than that the State was charging that Emma Charity's death had resulted at some point between the date when the state charged he struck her and the date the indictment was returned, only a little more than a month later. If the defendant wished to know the precise date the State claimed she died, he could have included a request for this information in the bill of particulars which he filed. Furthermore, the indictment states the facts alleged with sufficient definiteness to form the basis for a plea of double jeopardy. The indictment is sufficient, in this respect.
Point No. 1 — Ground 5.
This Ground urges that the indictment is fatally defective because of vagueness in that it describes the place of the alleged offense only as "on College Avenue in Waterville, in the County of Kennebec and State of Maine."
The defendant relies upon State v. Peterson, 136 Me. 165, 168, 4 A.2d 835 (1939). Peterson involved a charge of operating while under the influence and its strict requirement as to allegation of place must be viewed in the light of the uncertainty that existed then as to whether the statute applied only to driving on public ways.
The locality of the criminal act is not a part of the offense created by 29 M.R.S.A. § 1315 and is an essential allegation only to show venue. See M.R.Crim.P. Form 5. Allegation and proof that the offense occurred in Waterville, in Kennebec County, satisfied the requirements of venue. M.R.Crim.P., Rule 18.
Point No. 1 — Ground 5
Defendant also included as a Ground for dismissal of the indictment an alleged vagueness as to the "manner and circumstances of operation of the automobile" which the state charges constituted driving with a reckless disregard for the safety of others.
In State v. Houde, 150 Me. 469, 114 A.2d 366 (1955) we held that a complaint which charged only that the defendant drove his automobile "in a reckless manner" did not give the defendant adequate notice of the nature of the charge which he is called upon to meet. There we pointed out that a particular manner of operation might be lawful in the daylight and reckless at night, for example. In Carlson v. State, 158 Me. 15, 176 A.2d 844 (1962) we found that an inartistic complaint which charged the defendant with driving "recklessly, to wit, at great excessive speed on said streets; failure to stop at stop signs at No. Main and Birch Streets, also No. Main and Maverick Streets" adequately informed the defendant of the factual nature of the charge and gave sufficient detail to protect him against double jeopardy.
The indictment in the instant case adequately informs the defendant as to the factual nature of this charge. It recites, as explanation of its charge of driving with a reckless disregard for the safety of others that he 1) drove at an excessive rate of speed under nighttime conditions with fog in the atmosphere, 2) that he failed to keep a proper lookout while driving and failed to see the deceased who was crossing the street in a lawful fashion. These details "sufficiently set out the facts which make
The presiding justic
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