State v. Kesslering
| Decision Date | 31 October 1849 |
| Citation | 12 Mo. 565 |
| Parties | THE STATE OF MISSOURI v. KESSLERING. |
| Court | Missouri Supreme Court |
APPEAL FROM THE ST. LOUIS CRIMINAL COURT.
STRINGFELLOW, for Appellant. The Criminal Court has jurisdiction. The terms “““crime,” “offense,” and “criminal offense” used in any statute, mean any offense punishable by fine or imprisonment, or both. § 39, art. 9, concerning Crimes and Punishments, Rev. Code, 1845, p. 415. The acts charged are not double in the sense which vitiates an indictment. The acts charged constitute the same offense. It has been repeatedly held that several distinct acts of selling may be charged in the same count against a grocer or dramshopkeeper, so several assaults may be charged in one count. It is submitted that the only case in an indictment for misdemeanors, in which distinct offenses cannot be joined, is that in which the punishment for such offenses is different. In indictments against dramshop-keepers, ferry-keepers, and for keeping gambling devices, it is the invariable and approved practice to charge several acts, each of itself sufficient to warrant a conviction. 15 Pick. 274; 9 Wend. 193; 1 Chitty's Crim. Law, 254; State v. Buford, 10 Mo. R. 704. It is not necessary to charge ownership. A lessee of a table, or an agent of the owner, is as liable as the owner.
This was an indictment against the defendant, John Kesslering, upon the statute concerning Billiard Tables. The fifth section of the act is in the following words: “Every person who shall keep or permit to be used and kept, any billiard table, without having a license therefor, shall forfeit and pay four hundred dollars for the use of the State, to be recovered by indictment.” The indictment in this case is in the following words, viz.:
| STATE OF MISSOURI, |
| ) |
| St. Louis Criminal Court, |
| ) |
| ss. |
| County of St. Louis, |
| ) |
January term, 1848.
“The grand jurors of the State of Missouri, within and for the county of St. Louis, now here in court, duly impanneled, sworn and charged, upon their oath present that John Kesslering, late of the city of St. Louis, in the county of St. Louis aforesaid, on the first day of March in the year of our Lord one thousand eight hundred and forty-seven, and on divers other days and times, between that day and the day of the finding of the indictment, at the city of St. Louis aforesaid, unlawfully did keep and permit to be used and kept, a billiard table, without then and there, and on said divers other days and times, having any license therefor, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
D. N. HALL, Circuit Attorney.”
The defendant was arrested by virtue of a capias issued on this indictment, and appeared to the indictment and filed his demurrer thereto, setting out as causes of demurrer, “that the said declaration is double, in this, that it charges said Kesslering with keeping a billiard table, and also for permitting to be used and kept a billiard table without license therefor, and that said indictment is in other respects informal and insufficient in law.” The court sustained the demurrer to said indictment, and the State brings the case before this court by appeal.
The only point, therefore, before this court, is the sufficiency of the indictment. The offense in this case is created by the statute; and all the acts that constitute it are set forth in the statute, and it is only necessary for the circuit attorney to charge the offense in the...
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...constitute the offense, and must conform to the language or state all the facts which bring it within the terms of the statute. [State v. Kesslering, 12 Mo. 565; v. Davis, 70 Mo. 467; 5 Cyclopedia of Law and Procedure, 1042, and cases cited.] In a word, the indictment must, on its face, by ......
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