State v. Hayes

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRYLAND
PartiesTHE STATE, Appellant, v. HAYES, Respondent.
Decision Date31 January 1857

24 Mo. 358

THE STATE, Appellant,
v.
HAYES, Respondent.

Supreme Court of Missouri.

January Term, 1857.


1. Time and place should be stated in an indictment with certainty. An indictment which, after stating several different times, charges that the defendant “then and there” committed the offense, etc., is bad for uncertainty.

Appeal from Polk Circuit Court.

Ewing (attorney-general), for the State.

I. Time and place are alleged with sufficient certainty to every material averment. (1 Chitty C. L. 220; Commonwealth v. Wentz, 1 Ashm. 269; Commonwealth v. Dedham, 16 Mass. 141; United States v. La Coste, 2 Mason, 140.)

II. The indictment is sufficient without averring or setting out any order of the court or judge for the warrant. (State v. Copp, 15 N. H. 214; 2 Chitty C. L. 831; 4 T. R. 366; Archb. C. P. 356; 5 T. R. 607; 3 T. R. 632; 3 Gilman, 76.) It is not necessary to set out the process so as to show it to be valid. The State, on the trial, could not introduce invalid process in evidence. It is sufficient to describe the process so as to identify it. (Slicker v. State, 8 Engl. 397; United States v. Clark, 1 Gall. 497.)

F. P. Wright, for respondent.

I. The court did not err in quashing the indictment. There are several times previously laid in the indictment, and the venue as to the attempt to rescue is laid by the words “then and there.” The law is well settled that when two different times are mentioned in an indictment, and a material fact is afterwards averred, it will not be sufficient to give venue to such fact by stating “then and there” only. (State v. McCracken, 20 Mo. 411; State v. Hardwick, 2 Mo. 228; Jane v. The State, 3 Mo. 63; 1 Chitty C. L. 179; 1 Archb. C. P. 83.)

II. The indictment does not show, nor does it appear on the record, that the court or any judge made any order authorizing the clerk to issue the warrant under which the person indicted

[24 Mo. 359]

was arrested. (R. C. 1845, p. 870.) This presents the question whether the warrant was not void and the proceedings of the sheriff, in making the arrest, illegal. The warrant was also issued in November, 1852, and is made returnable in April, 1852. An indictment for a rescue must show that the person rescued was lawfully in custody, and set out the writ and warrant. (1 Hale P. C. 606; Stark. Cr. Pl. 156; Archb. C. L. 550;...

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3 practice notes
  • State v. Graves, No. 38734.
    • United States
    • Missouri Supreme Court
    • June 5, 1944
    ...State v. Palmer Doll, 4 Mo. 455; State v. Flint, 62 Mo. 393; State v. Leonard, 171 Mo. 622; State v. Border, 199 S.W. 180; State v. Hayes, 24 Mo. 358; State v. Good, 24 Mo. 361; State v. Kenyon, 343 Mo. 1160. (3) Court properly allowed motion for new trial filed 12-1-41 after verdict 10-29-......
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...v. Keefe, 9 Gray (Mass.), 290; State v. Temple, 38 Vt. 37; State v. Jackson, 39 Me. 291; Jane v. State, 3 Mo. 61; State v. Hayes, 24 Mo. 358; People v. Wallace, 9 Cal. 31; Morgan v. State, 13 Fla. 671; 1 Green Cr. Rep. 361.) (b) The indictment should, but does not, allege an intent or purpo......
  • United States v. Peuschel, 36.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 28, 1902
    ...the words, because it would not appear to which time such words applied.' 10 Enc.Pl.& Prac.p. 519; Jane v. State, 3 Mo. 61; State v. Hayes, 24 Mo. 358; Com. v. Moore, 11 600; State v. Day, 74 Me. 220. In Jane v. State, supra, the court says: 'It is clear law, and has been so adjudged by thi......
3 cases
  • State v. Graves, No. 38734.
    • United States
    • Missouri Supreme Court
    • June 5, 1944
    ...State v. Palmer Doll, 4 Mo. 455; State v. Flint, 62 Mo. 393; State v. Leonard, 171 Mo. 622; State v. Border, 199 S.W. 180; State v. Hayes, 24 Mo. 358; State v. Good, 24 Mo. 361; State v. Kenyon, 343 Mo. 1160. (3) Court properly allowed motion for new trial filed 12-1-41 after verdict 10-29-......
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...v. Keefe, 9 Gray (Mass.), 290; State v. Temple, 38 Vt. 37; State v. Jackson, 39 Me. 291; Jane v. State, 3 Mo. 61; State v. Hayes, 24 Mo. 358; People v. Wallace, 9 Cal. 31; Morgan v. State, 13 Fla. 671; 1 Green Cr. Rep. 361.) (b) The indictment should, but does not, allege an intent or purpo......
  • United States v. Peuschel, 36.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 28, 1902
    ...the words, because it would not appear to which time such words applied.' 10 Enc.Pl.& Prac.p. 519; Jane v. State, 3 Mo. 61; State v. Hayes, 24 Mo. 358; Com. v. Moore, 11 600; State v. Day, 74 Me. 220. In Jane v. State, supra, the court says: 'It is clear law, and has been so adjudged by thi......

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