State v. Johnson

• Decision Date: 28 November 1887
• Citation: 6 S.W. 77,93 Mo. 317
• Parties: STATE v. JOHNSON.
• Court: Missouri Supreme Court

6 S.W. 77

93 Mo. 317

STATE v. JOHNSON.

Supreme Court of Missouri.

November 28, 1887.

1. ATTEMPT TO BREAK PRISON — INDICTMENT — SUFFICIENCY — DESCRIPTION OF OFFENSE.

An indictment for an attempt to break prison is sufficient if it employs the phraseology of the statute creating the offense.¹

2. SAME — DESCRIPTION OF PERSON — USE OF INITIALS — OBJECTION AFTER PLEA OF GUILTY.

Under Rev. St. Mo. § 1821, which provides that an indictment shall not be deemed invalid "for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant, upon the merits," the substitution of initials for the christian name of the defendant will not vitiate the indictment, especially after a verdict has been rendered on a plea of guilty.

Appeal from circuit court, Cole county; E. L. EDWARDS, Judge.

G. T. White, for plaintiff in error. B. G. Boone, Atty. Gen., for the State.

SHERWOOD, J.

The indictment, omitting the formal part, is as follows: "That heretofore, to-wit: On the twenty-third day of February, 1883, at the county aforesaid, J. B. Johnson, Robert Jennings, John Williams, David Taylor, Perry Martin, and Lloyd Anderson, were each and all of them convicts, and as such lawfully imprisoned in the penitentiary of the state of Missouri there and then situate, according to the statute in such cases made and provided, for a term less than life; and that the said J. B. Johnson, Robert Jennings, John Williams, David Taylor, Perry Martin, and Lloyd Anderson, and each of them, did then and there feloniously, willfully, and maliciously attempt, by force and violence to certain persons, to-wit: W. B. Vanhorn, Walton Platt and R. S. Tarleton, the said W. B. Vanhorn, Walton Platt, and R. S. Tarleton being then and there the lawful guards and keepers of the aforesaid convicts, to effect their escape from such imprisonment, against," etc.

The statute upon which it is drawn reads as follows: "Section 1456, Rev. St. Attempt to Escape from Penitentiary by Force. Every person lawfully imprisoned in the penitentiary, or held in custody going to the penitentiary, under sentence of imprisonment for a term less than life, who shall attempt, by force or violence to any person, to effect his escape from such imprisonment or custody, whether such escape be effected or not, shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years, to commence at the expiration of the original term of imprisonment."

After conviction upon a plea of guilty, the defendant moved in arrest, and his motion questions the sufficiency of the indictment.

1. As a general rule it suffices if an indictment, based upon a statute, employs the phraseology of the statute in charging the offense. Section 1445, a cognate section to the one being discussed, makes it a felony to furnish prisoners with implements to escape. In State v. Addcock, 65 Mo. 590, it was ruled to be unnecessary to set out the particular felony with which the prisoner was charged whose escape was sought to be facilitated; and the indictment was held good. For a like reason, a like rule should prevail in the case at bar. Similar rulings have been made elsewhere. State v. Murray, 15 Me. 100; Gunyon v. State, 68 Ind. 79; Clemons v. State, 4 Lea, 23.

2. It is insisted that the indictment is also bad, because initials are substituted for the christian or baptismal name of the defendant, and no excuse given for failure in this particular. Whatever may have been the rule at common law, the objection should not prevail under the broad provisions of section...