State v. Aguila

• Decision Date: 31 March 1851
• Citation: 14 Mo. 130
• Parties: STATE OF MISSOURI v. AGUILA.
• Court: Missouri Supreme Court

14 Mo. 130

STATE OF MISSOURI

v.AGUILA.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT

The grand jurors of St. Louis county, at the late May term of the St. Louis Criminal Court, to-wit: on the 20th day of May, 1850, found and returned into court an indictment against the defendant containing two counts. The first count charges that the defendant on the first day of March, 1850, at St. Louis, in St. Louis county, about the hour of 10 in the night-time of said day, with force and arms at the county aforesaid, unlawfully, maliciously and feloniously, did set fire to, and burn the dwelling-house of Thomas R. Harman, then and there situate, in which said dwelling-house there was then and there a human being, contrary, &c., said count being drawn up under the 1st section of article 3rd, Crimes and Punishments, p. 354. The second count charges that said defendant, at the county, and at the time aforesaid, feloniously, willfully and maliciously, did attempt to set fire to and burn the dwelling-house of Thomas R. Harman, then and there situate, in which said dwelling-house, then and there, was a human being, and in such said attempt, and towards the commission of said offense, the said defendant then and there, in and about and near to, and upon the walls and floor, and in the celler of said dwelling-house, unlawfully, willfully, maliciously and feloniously, did put and deposit shavings, chips, faggots and other combustible matter and substance, and then and there said defendant, in and upon, and about the said shavings, chips, faggots, and other combustible matter and substance, unlawfully, willfully, maliciously and feloniously did throw, cast, put and deposit coals of fire, and fire brands, and fire, and then and there willfully, unlawfully maliciously and feloniously did set fire to and burn the said shavings, faggots, &c., in the attempt and towards the commission of the offense of arson as aforesaid, but that said attempt did fail, &c. The last count being drawn upon the count last aforesaid, and upon the 1st section on the same, page 408. And afterwards, on the 15th day of July, 1850, defendant comes, and by his attorney, files his motion to quash the said indictment, for the reason that the said indictment does not state the name of any human being that was in the said dwelling-house alleged to have been burnt, or attempted to be burnt by defendant, and for uncertainty. On the 24th of July, 1850, the court sustained the said motion, and quashed both counts, for the reason that the name of the person alleged to have been in said dwelling-house at the time of the alleged arson, or attempted arson, does not appear in said counts. To which the State then and there excepted, and brings the case into this court by appeal.

LACKLAND, for The State. I. The first count follows the statute. What benefit could result to the defendant by naming the person in said house at the time of the attempted arson? As a general rule, it is sufficient to charge an offense in the words of the statute. State v. Baugher, 8 Blacks. 307; United States v. Wilson & Porter, 1 Bald. 116, 117; United States v. Gooding, 12 Wheat. 474; United States v. Lancaster, 2 McLean, 432; State v. Duncan, 9 Porter Ala. R. 260; State v. Mitchell, 6 Mo. R. 147; State v. Helm & Thornhill, 6 Mo. R. 263. II. The true test as to the question whether the counts in this indictment are bad, is whether a conviction upon the indictment could be plead in bar to a subsequent prosecution for the same offense. The true test whether an acquittal could be plead, is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. United States v. Lancaster, 2 McLean, 439; Rex v. Francis Clark, 1 Brod. & Bing. 473; Rex v. Sheen, 2 Car. & Payne, 634; Rex Evidence, 6 East, 437. III. There is no misjoinder of offenses. The court erred in quashing the indictment for that reason, Two or more distinct offenses may be included in one indictment, in several counts, when the offenses are of the same general nature with the same mode of trial, and the same punishment. Carlton v. Commonwealth, 5 Metc. 532; State v. Preston, 1 Chever, 103. IV. Offenses of same character, though differing in degree, may be united in same indictment, and the prisoner tried on both at the same time, and convicted of one and not the other. Baker v. State, 4 Pike Ark. R. 56. V. When there are different counts, charging...