State v. Freeze
| Decision Date | 10 April 1888 |
| Citation | 30 Mo.App. 347 |
| Parties | STATE OF MISSOURI, Respondent, v. HERMAN FREEZE, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the Cape Girardeau Circuit Court, HON. H. C O'BRYAN, Judge.
Affirmed.
WILSON CRAMER and MAURICE CRAMER, for the appellant: The county of Cape Girardeau is entitled to but two grand juries in each year, and it appearing from the record that there had been a grand jury qualified and empaneled at the January and May terms of the circuit court of said county, the grand jury summoned and returned to the August term of said court had no legal existence and their acts were absolutely void and of no effect. Rev. Stat. 1879, secs. 1154, 1174; State v Green, 87 Mo. 583; State v. DeBar, 58 Mo. 395. The word year will always be intended to mean a calendar year, except when applied to revenue matters the presumption will be in favor of its referring to a fiscal year. Glasgow v. Rowse, 43 Mo. 479. The record does not show that the indictment was presented according to law, or that it was presented at all, and it is, therefore, void. Rev. Stat. 1879, sec. 1797. The indictment charges several distinct and independent offences in one count, and is therefore, bad. State v. Bach, 25 Mo.App. 554; State v. Clevenger, 20 Mo.App. 628.
J. A. SNIDER, for the respondent: An objection that no order was made by the court to the sheriff directing him to summon a grand jury for any term of court, is a challenge to the array. State v. Bleekley, 18 Mo. 429; State v. Connell, 49 Mo. 282; State v. Dagmond, 55 Mo. 87. And a challenge to the array is only permitted, for the causes mentioned in the statute. Rev. Stat. 1879, secs. 1772, 1773; State v. Welch, 33 Mo. 33. The record shows that the grand jury that presented this indictment was summoned by the sheriff and properly empaneled, sworn, and charged by the court before entering upon a discharge of its duties, and defendant's rights were not prejudiced thereby. State v. Knight, 61 Mo. 373; State v. Hart, 66 Mo. 208 The indictment follows the language of the statute upon which it is bottomed, and that is sufficient. Laws 1883, p. 88, sec. 5; State v. Watson, 65 Mo. 115; State v. Emerich, 87 Mo. 110; State v. Madden, 81 Mo. 421; State v. Brigard, 76 Mo. 322. Where a statute forbids several things, or creates several offences in the alternative which are not repugnant in their nature or penalty, it is treated in pleadings as but one offence, and they may be all united conjunctively in one count, and the count is sustained by proof of one of the offences charged. State v. Murphy, 47 Mo. 276; State v. Fitzsimmons, 30 Mo. 237; State v. Flint, 62 Mo. 394; State v. Fancher, 71 Mo. 461; 1 Bish. Crim. Proc., secs. 191, 193; State v. Nations, 75 Mo. 53; State v. Klein, 78 Mo. 627; State v. McAdoo, 80 Mo. 216; State v. Brigard, 76 Mo. 322; State v. Pittman, 76 Mo. 56. Keeping open a d?? and selling and giving away liquor on Sunday are so closely connected that they constitute but one transaction, hence but one offence. State v. Murphy, 47 Mo. 267.
The defendant was tried and convicted in the circuit court of Cape Girardeau county on the following indictment:
" State of Missouri, )
against ) Selling liquor on Sunday.
Herman Freeze, )
The grand jurors of the state of Missouri, duly empaneled, sworn, and charged, to inquire within and for the county of Cape Girardeau, and state aforesaid, upon their oaths aforesaid, present and charge, that Herman Freeze, at said county and state, on or about the seventh day of August, 1887, then and there a dram-shop keeper, and having a license to keep a dramshop, did keep open such dramshop, and sell and give away, and suffer to be sold and given away, upon and about his premises, intoxicating liquors, to-wit: one glass of whiskey, and one glass of beer, on the first day of the week, commonly called Sunday, contrary to the form of the statutes, and against the peace and dignity of the state.
J. A. SNIDER, Pros. Atty."
To this indictment defendant filed his plea in abatement, alleging that he ought not to be held in said indictment, " because the same is illegal and void, having been found and presented at the August term, 1887, of the circuit court, the same being the third regular term of said court in said county."
By section 1154, Revised Statutes, three terms of said court are required to be held in said county each year, said terms beginning on the first Monday in January, the first Monday in May, and the fourth Monday in August, but, " there shall be but two grand juries unless otherwise ordered by the court." Rev. Stat., sec. 1174.
At the regular terms of said court, in January and May, 1887, there was summoned and empaneled a grand jury in due course of law, but the grand jury by which this indictment was found was summoned by the sheriff for the August term, without any order or notice from the judge. The defendant insists that said grand jury, so empaneled and sworn at said August term, had no legal existence or authority, and had no power to make presentments, and that this indictment was not presented to the court by the foreman of the grand jury as required by law. The trial court overruled the plea in abatement, which action is here assigned as error.
Defendant then filed a motion to quash on the ground that the indictment is defective and insufficient in this, that it charges several separate and distinct offences in the same count. The court also overruled this motion, which action is assigned as error.
Defendant then waived arraignment and entered a plea of not guilty, was tried by a jury, found guilty, and appeals to this court.
The objection that no order was made by the court to the sheriff directing him to summon a grand jury, is not well taken. A plea in abatement is not the proper mode of raising objections to grand jurors. State v. Drogmond, 55 Mo. 89. Objections to jurors must be made before they are sworn. State v. Connell, 49 Mo. 282. The objection raised by this plea is to the array, that is, to the panel such objection cannot be presented by a plea in abatement. Rev. Stat., secs....
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