the same whatever may have been the motives which actuated the witness in making the statements or the juror in listening to them. A decent regard for the proper administration of justice compels the court not only to hold parties responsible for their own misconduct, but for the indiscretions of their friends in conveying to jurors private information relating to a case on trial before them. Such irregularities are sternly discountenanced by the courts, and jurors are admonished that in receiving evidence or information in this manner they are not only acting in violation of their oaths and of the statutes of the state, but are doing injury and injustice to both parties to the suitinjustice to him who has lost the verdict in the court below, and injury to his opponent, who will lose it in this court if the objection is insisted upon and has not been waived. Bradbury v. Cony, 62 Me. 223, 16 Am. Rep. 449; McIntire v. Hussey, 57 Me. 497; Heffron v. Gallupe, 55 Me. 563.

But it appears from the positive testimony of the messenger of the court, introduced by the plaintiff as his principal witness in support of this motion, that all of the information now presented to the court in relation to any misconduct on the part of the jurors in this case was communicated to the senior counsel for the plaintiff before the jury retired to consider the verdict. The attorney, it is true, has the "impression" that this information did not come to him until after the verdict was returned; but, while the integrity of both witnesses is unquestioned, it is the opinion of the court that the "mere impression" of the attorney is not sufficient to overbalance the clear and emphatic statement of his own witness who gave him the information, and that it must therefore be deemed an established fact that the plaintiff's counsel had knowledge of the alleged misconduct before the jury retired. The conclusion can therefore be concisely stated in the language of the court in Hussey v. Allen, 59 Me. 269: "As the plaintiff did not then choose to insist upon the objection, and to have those jurors set aside, and a new jury impaneled to try the case, but, on the contrary, went on and closed the trial, and took his chance of obtaining a verdict in his favor, we think the objection must be regarded as waived, and that it now comes too late." See, also, Fessenden v. Sager, 53 Maine, 531, and cases cited.

Motion overruled.

(99 Me. 329)

STATE v. DORAN.. (Supreme Judicial Court of Maine. Dec. 5, 1904.)

CRIMINAL LAW-INDICTMENT-ARREST OF JUDGMENT ATTEMPT TO COMMIT FELONY.

1. An indictment under the statute for attempting to break and enter a railroad car, that contains no description of the overt act done by the accused in attempting to commit the crime

charged, nor a specification of the particular felony which the defendant is charged with attempting to commit, is clearly insufficient.

2. Where the offense is created by statute, and the facts constituting it are fully set out, it is undoubtedly sufficient to charge the offense in the language of the statute without further description. But if the statute creating an offense fails to set out the facts constituting it sufficiently to apprise the accused of the precise nature of the charge against him, a more particular statement of the facts will be requir ed in the indictment.

3. Where a mere generic term is used, or where the words of the statute by their generality may embrace cases which fall within the terms, but not within the spirit or meaning, of it, the specific facts must be alleged to bring the defendant precisely within the inhibition of the law.

4. To constitute an attempt, there must be something more than mere intention or preparation. There must be some act moving directly towards the commission of the offense after the preparations are made.

5. An indictment for an attempt to commit burglary must not only allege the attempt and intent, but it is essential that it must also allege the overt acts relied upon as constituting the attempt.

6. The word "felony" is not the name of any specific offense, but is a generic term, employed to distinguish certain high crimes from other minor ones known as "misdemeanors," and an averment that the accused broke and entered the car for the purpose of committing a felony wholly failed to apprise him of the specific offense which it is claimed he intended to commit.

7. An indictment which fails to specify the particular felony which it is alleged the defendant intended to commit is fatally defective. (Official.)

Exceptions from Supreme Judicial Court, York County.

John Doran was indicted for attempting to break and enter a certain car of the Boston & Maine Railroad "for the purpose of committing a felony," and upon trial was found guilty. Thereupon he moved in arrest of judgment. The motion was overruled, and the defendant excepted. Exceptions sustained.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

George L. Emery, Co. Atty., for the State. Anthony Dwyer, for defendant.

WHITEHOUSE, J. It is alleged in the indictment that the defendant, "with force and arms, the car numbered 18,656 of the Boston & Maine Railroad * feloniously, willfully, and maliciously did attempt to break and enter for the purpose of committing a felony." The jury returned a verdict of guilty, and the defendant moved in arrest of judgment; among other reasons, "because no specific offense against the laws of this state is alleged against the said Doran in said indictment, and that no judgment could be rendered upon the verdict in said court." The motion was overruled by the presiding judge, and the case comes to this court on exceptions to this ruling.

The indictment appears to be founded on

4. See Criminal Law, vol. 14, Cent. Dig. § 51.

section 9 of chapter 132, Rev. St., relating to "attempts to commit offenses," and section 8 of chapter 120, Rev. St., descriptive of the offense which the defendant was charged with attempting to commit. Section 9 of chapter 132 provides that "whoever attempts to commit an offense, and does anything towards it, but fails, or is interrupted or prevented in its execution," shall be punished as therein provided; and section 8 of chapter 120 declares that "whoever, with intent to commit a felony, breaks and enters a railroad car of any kind, or building in which valuable things are kept," shall suffer the penalty therein specified.

It appears from a comparison of these provisions with the language of the indictment that only the general terms of the statute have been employed to state the charge against the defendant, both with respect to the "attempt" to commit the offense and the "felony" which he intended to commit. The indictment contains neither a description of the overt act done by the accused in attempting to commit the crime charged, nor a specification of the particular felony which the defendant is charged with attempting to commit after breaking and entering the car.

*

Where the offense is created by statute, and the facts constituting it are fully set out, it is undoubtedly sufficient to charge the offense in the language of the statute without further description. 1 Bish. Cr. Proc. § 611. But "in all criminal prosecutions the accused shall have a right to demand the nature and cause of the accusation." Const. Me. art. 1, § 6. He has a right to insist that the facts alleged to constitute a crime shall be stated in the indictment against him with that reasonable degree of fullness, certainty, and precision requisite to enable him to meet the exact charge against him, and to plead any judgment which may be rendered upon it in bar of a subsequent prosecution for the same offense. Hence, if a statute creating an offense fails to set out the facts constituting it sufficiently to apprise the accused of the precise nature of the charge against him, a more particular statement of the facts will be required in the indictment. "And where a more generic term is used, or where the words of the statute by their generality may embrace cases which fall within the terms but not within the spirit or meaning thereof, the specific facts must be alleged to bring the defendant precisely within the inhibition of the law." Enc. of Pl. and Prac. vol. 10, p. 487; Wharton's Cr. Pl. and Prac. § 220. Indeed, it is an elementary rule of criminal pleading that every fact or circumstance which is a necessary ingredient in a prima facie case of guilt must be set out in the indictment.

With respect to indictments for attempts to commit offenses Mr. Bishop says: "An attempt is an intent to do a particular criminal thing with an act towards it falling short of the thing intended [1 Bish. Cr. Law, §

728], and on principle we see that we must set out the act which was committed and the specific intent which accompanied it." Bish, on Stat. Cr. § 394; 2 Crim. Proc. §§ 1, 92; Directions and Forms, § 100. In 2 Wharton's Crim. Law the author says: "Attempt is a term peculiarly indefinite. It has no prescribed legal meaning. It relates from its nature to unconsummated offenses. Attempts may be merely in conception or in preparation, with no causal connection between the attempt and any particular crime. In an indictment for an attempt it is essential to aver that the defendant did some act which, directed by a particular intent, which must be averred, would have apparently resulted in the ordinary and likely course of things in a particular crime." Sections 2703, 2705. To constitute an attempt, there must be something more than mere intention or preparation. There must be some act moving directly towards the commission of the offense after the preparations are made. People v. Youngs, 122 Mich. 292, 81 N. W. 114, 80 Am. St. Rep. 582. "An indictment for an attempt to commit burglary must not only allege the attempt and intent, but it is essential that it also allege the overt acts relied upon as constituting the attempt." Cyc. of Law and Proc. vol. 6, p. 225. See, also, Encyc. Pl. and Prac. vol. 3, p. 799, and cases cited.

Again, as already noted, the indictment fails to specify the particular felony which it is alleged the defendant intended to comImit. This is another fatal defect. The word "felony" is not the name of any distinctive offense. It is a generic term, employed to distinguish certain high crimes, as murder, robbery, rape, arson, and larceny, from other minor ones, known as "misdemeanors." The averment that the defendant broke and entered the car for the purpose of committing a felony wholly failed to apprise him of the specific offense which it is claimed he intended to commit. Whether it would be contended by the state that he intended to commit murder, or robbery, or rape, or larceny, he is not informed. Upon the trial of such an indictment he was liable to be oppressed by the introduction of evidence which he could not anticipate or be prepared to meet. The authorities are substantially unanimous in support of the proposition that such an allegation is wanting in the precision and certainty required by the Constitution and the rules of criminal pleading. "Though in burglary and statutory house-breaking the intent, as defined by the law, is simply to commit a felony, it is not sufficient in the indictment to follow these general words, but the particular felony intended must be specified." Bish. Cr. Proc. 1, § 527, and 2, § 142. See, also, Encyc. Pl. and Prac. vol. 3, p. 772, and 6 Cyc. Law and Proc. 217, tit. "Burglary," and cases cited; Wharton's Cr. Pl. and Prac. § 163a.

But while all the authorities substantially agree that it is necessary, in order that the charge may be certain, to specify the particular felony intended, they are not in harmony respecting the degree of particularity required in setting out the specific offense. According to the great weight of authority, however, as well as upon sound reason, the ulterior felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of such felony. 2 Bish. Cr. Proc. § 142. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape, or arson. Such is the rule in Massachusetts. In Com. v. Doherty, 10 Cush. 55, the court say: "From the very nature of the case in many instances the charge in its formal details could not be given. Suppose the alleged intent were to commit larceny, but of what particular goods, or the property of what particular individual, it could not be known unless the theft was actually perpetrated. A general intent to steal goods would complete the offense, and the averment of such intent, without more, is sufficient." Josslyn v. Com., 6 Metc. 239. Nor is it necessary, under our statutes, in the case of an alleged intention to commit larceny, to aver that the property intended to be stolen exceeded $100 in value. By section 1 of chapter 121, Rev. St., the larceny of property less than $100 in value is punishable by "imprisonment for not more than two years," and is therefore a felony under our statutes. By section 10 of chapter 132 and section 3 of chapter 136, Rev. St., the term "felony" is made to include every offense "punishable by imprisonment" "for the term of one year or more.” See State v. Goddard, 69 Me. 181.

The indictment being clearly insufficient for the reasons above set forth under the third specification contained in the defendant's motion, it is unnecessary to consider the causes assigned in the first and second specifications.

Exceptions sustained. Motion sustained. Judgment arrested.

(99 Me. 364)

CURRIER v. McKEE. (Supreme Judicial Court of Maine. Dec. 13, 1904.)

INTOXICATING LIQUORS PROXIMATE CAUSE CIVIL DAMAGE.

1. The law looks to the proximate, and not the remote, cause of an injury; but if the original act was wrongful, and would naturally, according to the ordinary course of human events, prove injurious to some person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury is referred to the wrongful cause, passing by those which are innocent.

2. It is not the lawful, but the wrongful or negligent, act of a third party intervening, which breaks the chain of causation and re

lieves the original wrongdoer of the consequences of his wrongful act.

3. A person is responsible for such consequences of his acts as ought to have been apprehended according to the usual experience of mankind.

4. Whether one who lets loose such a dangerous agent as intoxicating liquor is not bound to apprehend that the intoxication thereby produced is likely to cause unjustifiable assaults and consequent injury to the assailant is a question of fact for the jury.

5. In an action under Rev. St. 1883, c. 27, § 49 (Rev. St. 1903, c. 29, § 58), there was evidence tending to prove that the defendant sold intoxicating liquor to the plaintiff's son, upon whom she was in part dependent for her support; that the liquor caused him to make an assault upon one B., by whom, in self-defense, he was struck, and his jaw broken, resulting in his decreased ability to labor, and consequent injury to the plaintiff's means of support.

Held that, if these issues are found in the affirmative, and the jury also finds that the defendant ought to have apprehended the resulting injury to the son, the injury to the plaintiff's means of support would then be by reason of the intoxication of the son, and the defendant would be liable therefor.

(Official.)

Exceptions from Supreme Judicial Court, Aroostook County.

Action on the case by Alice M. Currier against Robert J. McKee under the civil damage act (Rev. St. 1883, c. 27, § 49; now Rev. St. 1903, c. 29, § 58), brought by the plaintiff to recover of the defendant damages for selling intoxicating liquor to her son, by means of which she alleged she had been injured in her means of support, etc. At the close of plaintiff's testimony, on motion of defendant, the presiding justice ruled that on the evidence of the plaintiff the action could not be maintained, and ordered a nonsuit, and plaintiff excepted. Exceptions sustained.

Argued before WISWELL, C. J., and SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Frank L. White and Ira G. Hersey, for plaintiff. George H. Smith and Louis C. Stearns, for defendant.

POWERS, J. This is an action under the civil damage act, and comes to the law court on exceptions to the ruling of the presiding justice directing a nonsuit.

There was evidence tending to prove that the plaintiff lived with her son, Will A. Currier, aged 34, upon his farm, and was dependent upon him for her support; that the defendant sold intoxicating liquor to the son, which caused his intoxication; that while so intoxicated he entered the store of one Boulier, who ordered him out of the store; that he went out, but turned, and tried to come back, with the intention of striking at Boulier and having a fight with him; that he did strike at Boulier, who thereupon struck him and broke his jaw, by reason whereof his ability to labor was decreased, and the support which he afforded his mother sensibly diminished.

The defendant contends that no recovery can be had except for those injuries of which

the intoxication is the proximate cause; that the independent act of an intelligent and responsible human being intervened, and caused the broken jaw, from which all damage to the plaintiff resulted; and that the intoxication was therefore the remote, and not the proximate, cause of the injury.

Rev. St. 1883, c. 27, § 49 (Rev. St. 1903, c. 29, § 58), creates a new cause of action unknown to the common law, and, so far as is material, reads as follows: "Every wife, child, parent, guardian, husband or other person who is injured in person, property, means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, has a right of action in his own name against any one who by selling or giving any intoxicating liquors, or otherwise, has caused or contributed to the intoxication of such person." The statute is aimed at the suppression of a great evil, and, while no effort should be made by a forced interpretation to extend its meaning beyond what was fairly intended, it should be literally construed, so as to effect the beneficent purpose for which it was enacted. In its terms it is very broad. It is not confined to unlawful sales, as was the original act of 1858, p. 34, c. 33, § 11 (Rev. St. 1871, c. 27, § 32), which was repealed by the Public Laws of 1872, p. 39, c. 63, § 4, and the present statute substituted. The giver, equally with the seller, is made liable for the injurious consequences of his act. It is not necessary that the intoxicating liquor furnished by the person sued should have been the sole cause of the intoxication. It is sufficient if it "contributed" to it in an appreciable degree. A right of recovery is given for injuries produced in two ways: First, "by any intoxicated person," and, second, "by reason of the intoxication of any person." When the injury is caused by an intoxicated person, it need not be shown that the intoxication caused the injurious act. In such case it is sufficient if, while in a state of intoxication, to which liquors furnished by the defendant contributed, such intoxicated person commits the act which results in injury to the "person, property, means of support, or otherwise" of the plaintiff. The furnishing by the defendant of the intoxicating liquor must have contributed as a proximate cause to the intoxication, and the act of the intoxicated person must have been the cause of the injury; but it is not necessary that the intoxication should have been the proximate cause of injury, or of the act which caused it. Neu v. McKechnie, 95 N. Y. 632, 47 Am. Rep. 89; Brockway v. Patterson, 72 Mich. 122, 40 N. W. 192, 1 L. R. A. 708. The Legislature seems to have regarded intoxicating liquor as dangerous to society, and to have intended that whoever, by furnishing liquor, contributed to the intoxication of any person, should be held responsible for inju ries inflicted by him while in that condi

tion, without placing upon the sufferer the burden of showing that the injury was due to the intoxication.

This, however, is but to show the scope of the statute, and that it should be construed in no narrow or illiberal spirit. The plaintiff claims that she was injured in her means of support not by an intoxicated person, but "by reason of the intoxication" of her son.

If this provision is to be regarded as calling for the same sequence and connection of causation required by the maxim of the common law which the defendant invokes, that the law looks to the proximate, and not to the remote, cause, the oft-embarrassing question remains of what is a proximate and effective, although not the immediate, cause of the injury. Giving to the defendant the full benefit of the application of the principle which he claims, still the statute does not require that the furnishing of the liquor by the defendant should be the proximate cause of the plaintiff's injury, but only that it should have contributed to her son's intoxication, and that the intoxication should have been the proximate cause of the injury. It is urged that the act of an intelligent and responsible human being -the blow struck by Boulier-intervened between the intoxication of the son and the resulting injury to the plaintiff. Upon the evidence, however, the jury might have found that the illegal sales of intoxicating liquor by the defendant to the plaintiff's son caused his intoxication, and that his intoxiIcation caused him to make an assault upon Boulier, and that the blow of the latter was solely in self-defense when struck at by the intoxicated son. If so, the intervention of Boulier was rightful. It is the wrongful or negligent act of a third party intervening which breaks the chain of causation and relieves the wrongdoer of the consequences of his wrongful act; but, if in the right, he is not responsible, and the party injured must seek reparation from him whose wrongful act was the first in the order of events causing the injury.

A reference to some of the authorities will show that this principle has been frequently recognized ever since the squib case (Scott v. Shepard, 3 Wils. 403), and also the liberal manner in which statutes giving a right of recovery for injuries to person, property, or means of support "in consequence of" or "by reason of the intoxication of any person" have been construed.

It is a principle of law, applicable to the doctrine of proximate cause, that, "if the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent. But,

if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as a proximate cause, and not to that which is more remote." Cooley on Torts, p. 76.

The plaintiff's son was struck by a railroad train while walking upon the track in an intoxicated condition. It was held that, the railroad company not being in fault, the intoxication might be found to be the proximate cause of the injury. "Men are held liable every day in tort for the natural and proximate results of their wrongs, although the particular result could not be foreseen as necessary at the time of the act." McNary v. Blackburn, 180 Mass. 141, 61 N. E. 885.

In Gage v. Harvey, 66 Ark. 68, 48 S. W. 898, 43 L. R. A. 143, 74 Am. St. Rep. 70, an intoxicated person was robbed of his money, and the person selling the liquor was held not liable. "The intervening act produced the injury complained of, and was the wrongful act of a third person, for which he was legally responsible."

In Schmidt v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446, it was held that if a person, in consequence of intoxication, should get into a difficulty, resulting in his being shot in the thigh, the party selling the liquor might be responsible for the direct consequences of the injury received; but that if, after becoming sober, his disregard of his physician's instructions should necessitate the amputation of his leg, the liquor seller would not be responsible for the loss of life. There the wound was lawfully inflicted by one Freidenback in defense of his house. Shugart v. Egan, 83 Ill. 56, 25 Am. Rep. 359, is sometimes cited in support of a contrary doctrine. There, however, the plaintiff's husband, in consequence of mere words used by him while intoxicated, was assaulted and slain by one McGraw. It is evident that mere words would not justify the assault, and that McGraw was a wrongdoer. The same court, commenting upon Shugart v. Egan, 83 Ill. 56, 25 Am. Rep. 359, in a later case said: "It was there said to be the common experience of mankind that the condition of one intoxicated invited protection against violence, rather than attack, and that it was not a natural and probable result of intoxication that the person intoxicated should come to his death by the willful criminal act of a third party.

It was not the intention that the intoxicating liquor alone, of itself, exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be given. The statute was designed for a practical end, to give a substantial remedy, and should be allowed to have effect according to its natural and obvious meaning." Schroder v. Crawford, 94 Ill. 357, 34 Am. Rep. 236. Intoxication was held to be the proximate cause of

death when a person was drowned in bathing. Meyer v. Butterbrodt, 146 Ill. 131, 34 N. E. 152. The party causing intoxication cannot escape liability because he may not reasonably have foreseen the consequences. Roth v. Eppy, 80 Ill. 283-a case of insanity, caused by habitual intoxication. Plaintiff's husband, while intoxicated, made an assault upon one Morceau, by whom he was killed. Held, that defendant would be liable on account of the sale and intoxication resulting from such sale, if such intoxication was the effective cause of the injury. Baker & Reddick v. Summers, 201 Ill. 52, 66 N. E. 302.

The leg of the plaintiff's husband was broken by one Free in a drunken scuffle. Both the husband and Free were intoxicated at the time by liquor sold by the defendant. In affirming a verdict for the plaintiff, the court said: "If the injury was occasioned by reason of the intoxication of Thomas or Free, and such intoxication was produced, in whole or in part, by the liquors sold by the defendant, Dansby, then the case would fall within the terms of the statute, and a recovery could be had if the plaintiff, by reason thereof, was injured in her means of support." Thomas v. Dansby, 74 Mich. 398, 41 N. W. 1088. A conviction of drunkenness has been held a proximate result of intoxication, such as will render the one furnishing the liquor liable to the wife for injuries resulting therefrom. Lucker v. Liske, 111 Mich. 683, 70 N. W. 421.

The question of proximate cause is for the jury under appropriate instructions of law. One is not bound to anticipate what is merely possible, nor, on the other hand, is he liable for such consequences only as usually follow. It is sufficient if the result ought to have been apprehended according to the usual experience of mankind.

The defendant need not have intended that the plaintiff's son should make an assault upon Boulier, or even have expected it, or the injury which followed. Enough if, according to human experience, it was to be apprehended that such results were likely to happen from the intoxication. The Legislature deals with intoxicating liquor upon the assumption that it is the enemy of society; that intoxication weakens the will, disturbs the judgment, saps the moral forces, and is the fruitful source of vice and crime, attended by personal injury and loss. It is natural as well as lawful that one assaulted should use reasonable force to repel the assailant, even to his personal injury. It is for the jury to say who is the assailant, and whether, under the circumstances, the force used was reasonable and appropriate. It is also for them to determine whether one who lets loose such a dangerous agent as intoxicating liquor is not bound to apprehend that the intoxication thereby produced is likely to cause unjustifiable assaults and consequent injury to the assailant.

In the case at bar there was evidence tending to show that the intoxicating liquor