State v. Hughes
| Decision Date | 30 April 1884 |
| Citation | 82 Mo. 86 |
| Parties | THE STATE v. HUGHES, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, Judge.
REVERSED.
No brief for appellant.
D. H. McIntyre, Attorney General, for the State.
The omission to lay the venue of the offense in the indictment is cured by the statute of jeofails. It provides that “no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected; * * for want of a proper or perfect venue; nor for want of any venue at all.” R. S. 1879, § 1821. Nor does the failure to allege the time of the commission of the offense invalidate the indictment. Time was not of the essence of the offense. R. S. 1879, § 1821; State v. Findley, 77 Mo. 338, and cases cited. If the willful and unlawful acts of the defendant disturbed the peace of persons in a public place, where they had the right to be, the offense was committed. State v. Lunn, 49 Mo. 90.
On the 5th day of July, 1880, the defendant, with others, was indicted in the Buchanan circuit court for disturbing the peace of a neighborhood. The indictment is as follows: “The grand jurors of the state of Missouri, within and for the body of the county of Buchanan being duly empanelled and sworn, do present that Robert Hughes (naming the other indictees) did unlawfully and willfully disturb the peace of a neighborhood by loud and unusual noises, by quarreling and fighting, and by loud, indecent and offensive conversation contrary, etc.” On trial had at the July term, 1881, the defendant was found guilty, and his punishment assessed by the jury at four months, imprisonment in the county jail. From the judgment entered thereon the defendant has appealed to this court.
I. This whole record, beginning with the indictment and ending with the trial, shows great carelessness and inattention on the part of the representatives of the state, both as to matters of form and substance in the proceedings. No venue or time is laid in the indictment. These defects are cured however by the statute of jeofails after verdict. R. S. 1879, § 1821; State v. Findley, 77 Mo. 338. But, the remarkable condition of the case is that the record discloses that the indictment was found and presented in court on the 5th day of July, 1880, the trial had on the 12th day of July, 1881; and it is impossible from the evidence preserved in the bill of exception to tell whether the offense, actually tried, occurred prior to the finding of the indictment. One witness testified to an affray occurring “sometime in July, 1880.” The next witness to “the 18th day of July, 1881.” If he meant 1880 it was thirteen days after the indictment was presented. The other witnesses testify that the disturbance occurred “in July,” no day or year being given. There might not be reversible error in any of this, as the first witness fixed the time “sometime in July, 1880;” but when the state presented its instructions it asked the court to tell the jury, and the court did tell the jury that if they believed from the evidence that the defendant with others “did on or about the 24th day of July, 1880, or within one year prior to said time” commit the offense they should find him guilty. The time fixed was nineteen days subsequent to the presentment of the bill. The instruction did not only authorize the jury to find the defendant guilty, if they believed the offense was committed on the 24th day of July, 1880, but on any other day between the 5th day of July, 1880, the date of the indictment, and the 24th day of July of that year. It is not essential that the state should prove that the offense occurred on any particular day. It will be sufficient if it appear that it occurred at any time within the year preceding the date of the bill of indictment. But it must affirmatively appear that the offense was committed prior to the presentment. In State v. Magrath et al., 19 Mo. 678, Ryland, J., expresses the law aptly thus: “It is not...
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