Hilderbrand v. State

• Decision Date: 31 May 1839
• Citation: 5 Mo. 548
• Parties: HILDERBRAND v. THE STATE.
• Court: Missouri Supreme Court

5 Mo. 548

HILDERBRAND

v.THE STATE.

Supreme Court of Missouri.

May Term, 1839.

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY.

P. COLE, for Appellant. The defendant presents the following points in order to the reversal of the judgment of the Circuit Court: First count in the indictment is bad, because there is no place stated where the offense was committed, and the court erred in overruling the demurrer. Time and place must be added to every material fact in an indictment. State v. Hardwick, 2 Mo. R. 228; Rex v. Holland, 5 T. R. 607; Rex v. Matthews, 5 T. R. 162; Rex v. Dezlett, 1 T. R. 69; 1 Johns. R. 70. If no time or place be stated, or no place where the court does not appear by the indictment to have jurisdiction over the offense, the defendant may demur, move in arrest of judgment, or bring a writ of error. Arch. Crim. Plead. 36; State v. Cook, 1 Mo. R. 547. Second count. The objection to this count is, that it charges the stealing of a bell collar of the value of twenty-five cents as a felony, when, under our statute, the offense is a mere misdemeanor, punishable by fine and imprisonment in the county jail. The defendant is, moreover, convicted on this count, and punished as for felony. Digest, 178, § 32. The defendant moved in arrest of judgment, but was overruled. This was error in the Circuit Court. Third count is bad, because it is double. To steal a mare is a penitentiary offense, without reference to the value; but to steal a chattel, is not felony, unless of the value of ten dollars or more; under that sum it is petit larceny and a misdemeanor. There is also a want of certainty in this count. The mare and bell collar are stated to be of the value of twenty-five dollars. Now, the stealing of the mare, per se, was felony--not so of the bell collar, which might be petit larceny. Rex v. Mace, 2 T. R. 381; 2 Hale, 182-3; Arch. Crim. Plead. 49, 60. There is a want of that precision that would enable the defendant to plead a conviction upon this count in bar of another prosecution for the same offense. The defendant is found guilty generally upon this indictment, which consists of distinct substantive offenses that are, to some extent, wholly repugnant to each other in grade and punishment. This is misjoinder, and the court erred in not arresting the judgment--1 Chit. Crim. Law, 209; and also erred in refusing a new trial.

BRICKEY, Circuit Attorney, for the State. There are three counts in the indictment--one for petit larceny, and two for grand larceny, and a general finding of the jury. Did the Circuit Court err in overruling the demurrer to the first count, the exception being the want of venue as to the alleged offense?

NAPTON, J.

The defendant was indicted by the grand jury of Jefferson county, for stealing a mare: was convicted and sentenced to the penitentiary for two years. The indictment contained three counts. The first count charged that defendant, on the 20th day of June, in the year eighteen hundred and thirty-eight, with force and arms, at the...