Austin v. State
| Decision Date | 31 March 1849 |
| Citation | 12 Mo. 393 |
| Parties | AUSTIN v. THE STATE. |
| Court | Missouri Supreme Court |
APPEAL FROM ST. LOUIS CRIMINAL COURT.
LESLIE & LORD, for Appellant, cited: Commonwealth v. Churchill, 5 Mass. R. 174, and cases there cited; Bac. Abr. 22 to 25, title Abatement; 6 Mass. R. 347; Beach v. Norton, 8 Conn. R. 71, 78, 79.
This case was an indictment found by the grand jury of the State of Missouri, for the county of St. Louis, against the defendant, Charles Austin, under the statute for keeping a billiard table without license. The defendant appeared and filed his plea in abatement, which plea is in these words, viz: “And now the said Charles Austin, by Leslie & Lord, his attorneys, comes into court here, having heard the said indictment read, saith, that at the time of the finding of this bill of indictment, to-wit: at the November term of this court, in the year of our Lord one thousand eight hundred and forty-seven, and on the same day of the finding of this bill of indictment, another bill of indictment against the said Charles Austin was found and brought into this same court by the same grand jury, which found and brought into court this indictment, which said other bill of indictment was, and is, for the same identical offense or charge as is mentioned and set forth in this indictment, as by the record and proceedings thereof, remaining in said St. Louis Criminal Court, more fully appears; and the said Charles Austin further said, that he is the same Charles G. Austin, and not other or different than the Charles Austin in the said other bill of indictment mentioned, and that the said other bill of indictment aforesaid, is still depending in the St. Louis Criminal Court, and this the said Charles Austin is ready to verify; wherefore, he prays judgment,” &c. To this plea, the State, by the circuit attorney, files a demurrer. The plea was sworn to. The court sustained the demurrer, and required the defendant to answer to the indictment. But he elected to stand by his plea, and refused to answer or plead over. Thereupon the court ordered the plea of not guilty to be entered, and a jury to be sworn and impanneled, which was done and the jury afterwards found the defendant guilty, and assessed the fine to four hundred dollars. The defendant brings the case here by appeal, and the only point before this court is, whether the court below erred in sustaining the demurrer to the defendant's plea.
The defendant's counsel relies upon the case of the Commonwealth...
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