4 S.W. 430 (Mo. 1887), State v. Vincent

Citation:4 S.W. 430, 91 Mo. 662
Opinion Judge:Black, J.
Party Name:The State v. Vincent, Appellant
Attorney:J. C. Fisher for appellant. B. G. Boone, Attorney General, for the state.
Case Date:May 16, 1887
Court:Supreme Court of Missouri
 
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Page 430

4 S.W. 430 (Mo. 1887)

91 Mo. 662

The State

v.

Vincent, Appellant

Supreme Court of Missouri

May 16, 1887

Appeal from St. Louis Criminal Court. -- Hon. G. S. Van Wagoner, Judge.

Affirmed.

J. C. Fisher for appellant.

(1) The indictment must state that the grand jury was "duly empanelled and charged to inquire within and for the body of the city of St. Louis," and true presentment was made, etc. R. S., sec. 1774; Const. Mo., art. 2, sec. 12. (2) The instrument forged is a draft, not a check. The indictment does not follow the statute, and charges no offence against the laws of the state. State v. Carpenter, 62 Mo. 594; R. S., secs. 1386, 1388. (3) The indictment does not state with sufficient particularity the part of the check forged. State v. Slay, 3 Stew. [Ala.] 123; R. S., sec. 1388; 57 Mo. 243; 62 Mo. 40; 86 Mo. 33. (4) The instrument, not having been endorsed by defendant, could not have been offered as a true and genuine check. State v. Hardy, 20 Me. 81; Haslip v. State, 2 Neb. 115; State v. Fay, 65 Mo. 490; State v. Chamberlain, 75 Mo. 382. (5) The indictment does not state that the city of St. Louis is in the state of Missouri. State v. Cutter, 65 Mo. 503. (6) The record does not show the presence of all the grand jurors, when the indictment was presented to the court. Whar. Crim. Law [3 Ed.] 150, 154. (7) The defendant was not required, under the law, to plead to a second indictment, while the first was still pending. (8) The record does not show that the defendant was present during the first part of the trial. State v. Barnes, 59 Mo. 154; State v. Barrett, 63 Mo. 300; State v. Able, 65 Mo. 37; State v. Allen, 64 Mo. 67; State v. Dooley, 64 Mo. 146.

B. G. Boone, Attorney General, for the state.

(1) The third count of the indictment upon which defendant (plaintiff in error) was convicted, was drawn under section 1388, Revised Statutes, and complies with the substantial requirements of the statute. Kelley's Crim. Law, p. 384, sec. 693; State v. Fisher, 65 Mo. 439, and cases cited; State v. Pullens, 81 Mo. 387. (2) The right of the state to find a second indictment against a defendant, for the same offence, is distinctly recognized by statute. Upon the finding of the second, the first is to be deemed suspended, and should be quashed. This may be done on the motion of the accused, or on the court's own motion, but whether it is quashed or not...

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