McKnight v. Spain ex rel. Field

• Citation: 13 Mo. 534
• Parties: WILLIAM S. MCKNIGHT v. WILLIAM SPAIN, USE OF A. P. FIELD.
• Decision Date: 31 October 1850
• Court: United States State Supreme Court of Missouri

13 Mo. 534

WILLIAM S. MCKNIGHT

v.WILLIAM SPAIN, USE OF A. P. FIELD.

Supreme Court of Missouri.

October Term, 1850.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

LESLIE, for Appellant. The property in question belonging to Spain at the time of arrest was by lien bound for the payment of the costs of the prosecution by Spain. And Spain being convicted, he levied upon the property and money to satisfy the execution according to the 30th section of the 8th article of Practice and Proceedings in Criminal Cases. Rev. Stat. 1845, p. 887, § 30.

FIELD, for Appellee. The appellee insists in this case that upon the whole record, the case was decided as it should have been, for the plaintiffs below: 1st. Because it was not shown by any proof offered in the case, that Spain was arrested on the charge of which he was indicted and convicted. If he had been legally arrested before the finding of the indictment, it should have been shown by the warrant, affidavit or in some other legal way. This not having been done, the presumption was that the indictment was the first step legally taken in the prosecution. 2nd. Although he might have been arrested before the assignment to Field of the money in controversy, still the appellee contends that the State had no such lien on the money as would have prevented Spain from using it to employ counsel to defend him against the charge of grand larceny. 3rd. Does this law which says that all a person's property, both real and personal, shall be bound for the fine and costs in the case from the time of arrest or finding of the indictment, whichever may happen first, embrace money which a man may have in his pockets--does personal property, when used in the law above referred to, include money? I think it is evident that it does not. The term personal property, used in the criminal code, does not mean money. See Rev. Laws, State ed. p. 887, § 30. Taking, therefore, all the provisions of the law together, Spain undoubtedly had a clear legal right to use the money he had to employ counsel to defend him against this charge, and in doing so he violated no right the State had. Rev. Laws, p. 872, § 4; Rev. Laws, p. 887, § 30; Rev. Laws, p. 415, § 40. Under the head of Jail and Jailors, see Rev. Laws, p. 617, §§ 9, 11.

RYLAND, J.

This was originally an action of assumpsit brought before a justice of the peace in St. Louis township, by the appellee, William Spain, for the use of A. P. Field, against the defendant, William S. McKnight, for the sum of ninety dollars, for money and property levied upon by McKnight, by virtue of an execution from the Criminal Court, in favor of the State of Missouri against said William Spain. From the record and proceedings below, we find the following facts: Spain was arrested by James McDonough, captain of the city watch, for grand larceny. McDonough found upon his person a one hundred dollar bank-note of the Bank of Missouri, and a gold watch. This watch and bank-note McDonough, at the time he arrested Spain, took from, and the same remained in the hands of the officers of the Criminal Court of St. Louis county until after Spain was indicted and convicted of the crime of grand larceny, and adjudged to pay the costs of the prosecution. An execution was issued by the clerk of the Criminal Court in favor of the State against the goods and chattels of said Spain, and William S. McKnight, the marshal of said Criminal Court, levied said execution on the above property, that is, the bank-note and the gold watch, and returned on said execution that he had made by the sale of the same the amount of one hundred and sixty-one dollars, being fifteen dollars and fifty cents less than the costs. It also appears that Spain, shortly after his arrest, conveyed by bill of sale the above property, that is, the gold watch and hundred dollar bank bill, to A. P. Field, Esq., in order to employ him, said Field, as an attorney to defend said Spain on his trial for said grand larceny. It appears that said A. P. Field did defend said Spain on the trial, but Spain was found guilty, the jury stating in their verdict that the “amount of money stolen was nine hundred and nine dollars and ninety-five cents.” It appears that Captain McDonough had no warrant against Spain at the time he arrested him, nevertheless he, a captain of the city watch, arrested Spain on a charge of grand larceny, Spain was indicted on the charge, was convicted and sentenced to the penitentiary for five years. In order to make the costs of this prosecution, an execution issued, and the property taken from Spain by McDonough was levied on by the marshal of the Criminal Court, the present appellant, and sold to make the costs. The sale of the property to Field was after the arrest and before the indictment.

The plaintiff Spain, to the use of Field, obtained judgment for ninety dollars and costs against the appellant McKnight, before the justice of the peace; McKnight appealed to the Circuit Court; there Spain again obtained judgment for $90 against McKnight, and McKnight moved for a new trial, which was overruled. He excepted to the opinion of the Circuit Court and brings the case to this court by appeal.

On the trial of the cause in the Circuit Court, evidence was excluded on the part of McKnight, and instructions refused on his part which at the time were excepted to by the defendant. It seems that after the defendant had given a copy of the record and proceedings from the Criminal Court of the case of the State of Missouri v. William Spain, indicted for grand larceny, in evidence, also a copy of the execution which had issued on the judgment of conviction for costs in said case, so as to show the indictment, conviction, judgment, execution for costs, levy and sale return made by marshal McKnight, the plaintiff moved the court to rule out from the evidence, the execution, indorsement and return, thereto, because the same...