State v. Belew

• Decision Date: 31 October 1883
• Citation: 79 Mo. 584
• Parties: THE STATE, Appellant, v. BELEW.
• Court: Missouri Supreme Court

79 Mo. 584

THE STATE, Appellant,

v.BELEW.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Howell Circuit Court.--HON. J. R. WOODSIDE, Judge.

REVERSED.

D. H. McIntyre, Attorney General, for the State.

A. H. Livingston for respondent.

PHILIPS, C.

The defendant, W. L. Belew, was indicted in the Howell circuit court for perjury. On arraignment he filed motion to quash, assigning as grounds thereof: 1st, Because there is no offense charged in the indictment; 2nd, Because the court is not informed in what issue or trial the alleged perjury was committed; 3rd, Because the indictment is an absurdity on its face. The court sustained the motion and quashed the indictment. The State appeals from this judgment.

1. PLEADING, CRIMINAL: demurrer.

It is argued by the Attorney General for the State that the first and third grounds of the motion should have been disregarded by the court below, for the reason that section 1818, Revised Statutes 1879, declares that: “A demurrer or motion to quash an indictment shall distinctly specify the grounds of objection to the indictment; unless it does so, it shall be disregarded, nor shall any reason be held to sustain such demurrer o motion not specified therein.” Under the decisions of this court, as late as the case of State v. Poston, 63 Mo. 522, the first and third grounds of objection would have been insufficient, and would have been disregarded by this court. But in the case of the State v. Weeks, 77 Mo. 496, the former rulings of the court were so far overruled as to hold that the ground assigned in the first objection is sufficiently specific to raise the question as to whether the indictment does charge any offense. In this particular it is like a demurrer to a petition in a civil action stating simply that the petition does not state facts sufficient to constitute a cause of action.

The third ground, that the indictment is absurd, of course is frivolous and should be disregarded.

2. ____; perjury.

We are unable, on an examination of this indictment, to discover its invalidity. The counsel for defendant has filed neither brief nor made any argument. We cannot conjecture his special objection. The indictment substantially, and with all needful particularity, charges that on the 2nd day of August, 1879, at the county of Howell, etc., before one W. T. Padgett, the acting and qualified constable of that township, named, having full and competent authority in the premises, a certain issue came on to be heard and tried respecting the right to certain personal property levied on by said constable as the property of said W. L. Belew, and which was claimed by one Joseph Belew, and that, on the trial of said issue had before a jury duly sworn, etc., the defendant appeared as a witness to testify, the parties to said cause being said Joseph Belew, claimant of said property, and E. D. Day as defendant; that defendant was duly sworn in said cause on behalf of said claimant, the oath being administered to him by said constable, having competent authority therefor, the said oath so administered being that the evidence which...