State v. Lucas

• Decision Date: 21 November 1898
• Parties: STATE v. LUCAS.
• Court: Missouri Supreme Court

47 S.W. 1067

147 Mo. 70

STATE v. LUCAS.

Supreme Court of Missouri, Division No. 2.

November 21, 1898.

THEFT — INDICTMENT — QUASHING — DISCRETION OF COURT — NEW TRIAL — NEWLY-DISCOVERED EVIDENCE — IMPEACHING EVIDENCE.

1. The fact that the word "gilts," in an indictment for hog-stealing, is spelled "guilts," does not vitiate the indictment.

2. The discretion of a trial court in ruling on a motion to quash an indictment cannot be reviewed.

3. A motion for a new trial must be supported by an affidavit of defendant, unless some excuse is shown for the omission.

4. Newly-discovered evidence which is merely for impeachment is not ground for a new trial.

Appeal from circuit court, Pulaski county; L. B. Woodside, Judge.

Ed. Lucas was convicted of grand larceny, and appeals. Affirmed.

Joe McGregor and Manes & Davis, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

SHERWOOD, J.

The jury impaneled to try defendant for grand larceny, said larceny consisting in stealing some hogs, as hereinafter described, found him guilty as charged, and assessed his punishment at two years in the penitentiary. The indictment is as follows: "The grand jurors for the state of Missouri, summoned from the body of Pulaski county, impaneled, charged, and sworn, upon their oaths present that Ed. Lucas, late of the county aforesaid, on the 12th day of November, 1895, at the county of Pulaski, state aforesaid, eight head of hogs, — one sow with both ears off, of the value of ten dollars; three guilts marked with a swallow fork and upper bit in the right ear, of the value of five dollars each; and four shoats marked with a swallow fork and upper bit in the right ear, of the value of two dollars and fifty cents each, — and all of the aggregate value of thirty-five dollars, of the personal property of one James Waymire, then and there being, feloniously did steal, take, and carry away, against the peace and dignity of the state. A true bill. D. A. Clarborn, Foreman of the Grand Jury. W. D. Johnson, Prosecuting Attorney."

1. The trial court very properly denied the motion to quash the indictment. It is in usual and approved form. The fact that the word "gilts" is spelled with a "u" does not vitiate the indictment. Mere bad spelling does not have that effect, where the meaning is plain, and the word is idem sonans with the word properly spelled. 1 Bish. New Cr. Proc. §§ 354, 357, 688.

2. Trial courts have a discretion as to quashing...