State v. Edwards

• Decision Date: 31 March 1854
• Citation: 19 Mo. 674
• Parties: THE STATE, Respondent, v. EDWARDS, Appellant.
• Court: Missouri Supreme Court

19 Mo. 674

THE STATE, Respondent,

v.EDWARDS, Appellant.

Supreme Court of Missouri.

March Term, 1854.

1. A party indicted is not a competent witness for another party jointly indicted.

2. A conviction cannot be shown by parol evidence; nor can a judge take judicial notice of a conviction before him in another county in the same circuit.

3. The omission of the word “did” in an indictment for a misdemeanor, before the words “assault, beat and maltreat,” held not fatal, and the addition of the words “with intent,” held mere surplusage.

Appeal from Washington Circuit Court.

Wm. Edwards and others were indicted under the sixth section of the seventh article of the act concerning crimes and punishments. (R. C. 1845.) The indictment is set out in the opinion of the court. Before trial, Wm. Edwards applied for and obtained a change of venue to Washington county. Other defendants took a change of venue to other counties. At the trial of Edwards, he called as witnesses two of the parties who were indicted with him. He offered to show by oral testimony that a nol. pros. was entered as to one, and it was admitted to be within the knowledge of the court that the other had been tried and convicted in another county in the same circuit. The court refused to permit them to testify, no record being produced. The defendant was convicted, and after motions for a new trial, and in arrest of judgment, appealed to this court.

J. G. Beal, for appellant.

D. Q. Gale, for the State.

RYLAND, Judge, delivered the opinion of the court.

In this case, there are several minor questions which I will dispose of before I mention the only one of any importance. In the first place, the persons whom the defendants introduced and wished to have examined as witnesses for him, were properly excluded by the court. They were parties to the indictment--co-indictees, and as such were not competent witnesses for their fellow-defendant. The defendant's counsel offered to prove, by parol evidence, that one of these persons had been convicted, and to the prosecution against the other a nolle prosequi had been entered, and contends, in this court, that the court below ought to have admitted these persons as witnesses, because the fact of the conviction of the one, and a nolle prosequi as to the other, were known to the court before which this trial was going on; the judge thereof having been the same judge before whom, as a court in another county, these proceedings were had. To state this proposition, is enough to make the absurdity thereof apparent.

As to the objections taken to the instructions given for the State, they are untenable. All the defendant's instructions were given, and nothing now remains to be considered except the motion in arrest, on account of the indictment. The main question, therefore, in the case, arises upon the sufficiency of the indictment. This indictment is as follows:

“State of Missouri, county of St. Francois. In the Circuit Court, November term, A. D. 1852. The grand jurors of the State of Missouri, impaneled, sworn and charged to inquire within and for the body of the county of St. Francois aforesaid, upon their oath present, that Jesse Edwards, John B. Clardy, William Edwards, Jackson Edwards, John Freeman and William Nelham, all late of the county of Ste. Genevieve, heretofore, to-wit, on the third day of November, in the year of our Lord one thousand eight hundred and fifty-two, with force and arms, at and in the county of St. Francois aforesaid, did unlawfully, riotously and routously assemble and gather together, to the number of three or more persons, with intent then and there, with force and violence, in a violent and turbulent manner, to do an unlawful act, that is to say, with force and violence, unlawfully and in a violent and turbulent manner, to assault, beat and maltreat one Stephen L. Page, and being so assembled and gathered together, unlawfully, riotously and routously, with intent then and there, with force and violence, in a turbulent and violent manner, assault, beat...