
    Carroll WILLIAMS v. STATE of Maine et al.
    Supreme Judicial Court of Maine.
    May 5, 1971.
    Carl W. Stinson, Bath, for plaintiff.
    John E. Quinn, Asst. Atty. Gen., Augusta, for defendants.
    
      Before DUFRESNE, C. J., and WEB-BER, POMEROY, WERNICK and WEATHERBEE, JJ.
   WEATHERBEE, Justice.

In October of 1969 the Sagadahoc County Grand Jury returned against Petitioner two indictments which contained a total of six counts. Two of these counts charged Petitioner with offenses of assault and battery of a high and aggravated nature upon each of two step-daughters. Petitioner entered pleas of guilty to both of these counts and was sentenced to serve concurrent State Prison terms of 1)4 to 5 years. He was confined in the prison at the time he filed this petition for the statutory writ of post-conviction habeas corpus attacking the validity of one of his convictions.

The Justice in the Superior Court dismissed the petition as being without merit, without appointment of counsel and without hearing. 14 M.R.S.A. § 5506. He then appointed counsel to represent Petitioner on appeal to this Court.

Section 5506 required the Justice to take the action he took if he found the petition to be without merit on its face and this appeal presents the issue of the correctness of his finding of absence of merit.

Petitioner’s first claim of error attacks the constitutionality of sec. 5506 in that it denies an indigent petitioner appointment of counsel if the Justice finds the petition is frivolous or without merit. We said in Brine v. State, 160 Me. 401, 205 A.2d 12 (1964) that in providing for appointment of counsel for all petitioners who present a legitimate reason for post-conviction relief our statute is fair and adequate and meets all constitutional requirements with respect to appointment of counsel. We remain convinced of the correctness of that appraisal, especially in view of the availability of review on frivolity and merits. Brine v. State, supra.

The only other issue raised by the petition for the writ of habeas corpus which is relevant to the issue before us — that is, to the issue of the correctness of the Justice’s determination that the petition was on its face without merit — is that of the adequacy of the count of one of the indictments to which Petitioner pleaded guilty.

At this point we must observe that Petitioner pleaded guilty to Count 4 in indictment No. 4016 and to Count 2 in indictment No. 4017. In his petition for the writ Petitioner seeks relief from his conviction in “Docket No. 4015 in which proceeding petitioner was convicted of the crime of Assault and Battery of High and Aggravated Nature”. While the identification by docket number is erroneous as to either charge, we are satisfied that Petitioner intended to seek relief from both convictions. As Petitioner was without counsel below and as the indictments are identical except as to the name of the child assaulted, we will treat the petition as referring to both Docket No. 4016 and No. 4017.

Count 4 of No. 4016 reads:

“That on or about the nineteenth day of September, 1969, in the Town of Richmond, County of Sagadahoc and State of Maine, the above named Defendant, Carroll Williams, did on and upon one P- feloniously make an assault of a high and aggravated nature, and him, the Said Carroll Williams, then and there feloniously and in a high and aggravated nature did strike, beat, bruise, wound and ill-treat,” (Emphasis added)

That the indictments failed to allege a battery upon the victim was apparently overlooked in the Superior Court. Joy v. State, Me., 230 A.2d 231 (1967).

17 M.R.S.A. § 201 defines the offenses of assault and assault and battery:

“Whoever unlawfully attempts to strike, hit, touch or do any violence to another however small, in a wanton, willful, angry or insulting manner, having an intention and existing ability to do some violence to such person, is guilty of an assault. If such attempt is carried into effect, he is guilty of an assault and battery. * * * When the offense is of a high and aggravated nature, the person convicted of either offense shall be punished * *

Under our statutes, as under the common law, assault and assault and battery are separate and distinct legal concepts and offenses but an assault is a necessarily included element of an assault and battery. It is sometimes said that an assault is an inchoate battery and that a battery is a consummation of an assault. 6 Am.Jur.2d, Assault and Battery, § 7; 6 C. J.S. Assault and Battery § 1. The charge of assault is necessarily included in every allegation of assault and battery and the failure to properly allege a battery does not affect the validity of the indictment as a charge of assault. 6 C.J.S. Assault and Battery § 110c.

Here the ineptly added allegations of battery fail to charge any offense at all beyond assault of a high and aggravated nature and are surplusage. Without them the indictments clearly and sufficiently allege assaults of high and aggravated nature. State v. Mahoney, 122 Me. 483, 120 A. 543 (1923).

The parties have included in the record the transcript at the time of plea and sentence. The transcript reveals a clear and adequate explanation to the Petitioner— then the Defendant — by the Presiding Justice of the nature of the charges and the meaning of the term “of a high and aggravated nature” as including sexual assaults. It also contains Petitioner’s admission that he committed such assaults upon his step children, as charged.

We find no invalidity to Petitioner’s pleas of guilty as far as they admit assaults of high and aggravated nature. The judgments of guilt of assault and battery of a high and aggravated nature, however, are error. Weeks v. State, Me., 250 A.2d 827 (1969).

Petitioner’s appeal is sustained.

The two cases, Docket No. 4016 and 4017 are remanded to the Superior Court for removal of the erroneous judgments, for entry of judgments of assault of a high and aggravated nature and for resentence.

Notice: This opinion is subject to formal revision before publication in the Maine Report. Readers are requested to notify the Administrative Assistant to the Chief Justice of any typographical or other errors of form in order that corrections may be made before the print goes to press.  