Kirk v. State

• Decision Date: 30 September 1840
• Citation: 6 Mo. 469
• Parties: KIRK, ALIAS KIRKPATRICK, v. THE STATE.
• Court: Missouri Supreme Court

6 Mo. 469

KIRK, ALIAS KIRKPATRICK,

v.THE STATE.

Supreme Court of Missouri.

September Term, 1840.

APPEAL FROM THE CRIMINAL COURT OF ST. LOUIS.

CRAWFORD, for Appellant. That the indictment should contain in itself everything necessary to enable the party indicted to make a full defense, without intendment, implication, or reference. It is the right of such party to plead to the jurisdiction of the court. The indictment in this case, does not inform the party as to the court in which it is found, and is therefore defective, and the defect fatal. That it is the right of a party indicted, to avail himself of any legal objections to the grand jury. The indictment in this case, does not inform him as to the term of the court, nor the time of finding the indictment, so as to enable him to avail himself of such legal objections as may exist against the grand jury, or the persons composing it, and is therefore defective, and the defect fatal. The endorsement of the clerk as to the time of filing the indictment, forms no part of the indictment.

That the indictment should have adopted the terms of the statute. It will be seen by reference to the record, that the terms adopted in the indictment are at variance with the terms of the statute, and therefore defective, and the defect fatal. Authorities: State of Missouri v. Comfort, 5 Mo. R. 358; State of Missouri v. Hunter, 5 Mo. R. 361; 1 Chitty's Criminal Law, p. 282.

The appellant has been prosecuted under the statute against stealing “slaves.” The indictment charges him with having stolen a “negro boy.” This I contend is not in conformity to the terms of the statute, and the description that he is ““a slave for life,” does not cure the defect. There is no statute against stealing a “negro boy.” The “negro boy” may have been free, and if so, no description, such as being “a slave for life,” can make him one. Same authorities as above; also Archbold, where under the statute against stealing cows, it was charged in the indictment for stealing a heifer, and was held to be defective.

BENT, Circuit Attorney, for the State. 1st. That there is no necessity for caption to an indictment, or reference in the indictment to the court, or the term thereof; these facts are sufficiently shown by the entries on the record. This answers also the second reason. 2d. The third reason is in substance, that the indictment does not charge the said Kirk with having stolen a slave. This will be answered by inspection of the indictment. 3rd. The fourth reason is that the indictment does not charge the said Kirkpatrick with having stolen a slave contrary to the form of the statute in such case made and provided. The truth of this is also matter of inspection, and depends solely on the indictment.

NAPTON, J.

An indictment was found at the January term, 1840, of the St. Louis Criminal Court, against the appellant, for stealing a slave. The defendant was convicted, and his counsel moved in arrest of judgment which motion...