State v. McCollum
| Decision Date | 31 August 1869 |
| Parties | STATE OF MISSOURI, Appellant, v. ALEXANDER MCCOLLUM, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Fifth District Court.
H. B. Johnson, Attorney-General, with whom were Collins, and Asper & Pollard, for appellant.
I. The indictment is good.
II. There is nothing in the objection that the indictment charges that the defendant enrolled and caused himself to be enrolled as a southern sympathizer. When a statute forbids several things in the alternative, it is competent to charge him with all, and sufficient to prove him guilty of either.
III. It was not necessary to allege or prove the purpose with which defendant enrolled or caused himself to be enrolled as stated. The law would presume it was for some purpose; and if for any purpose, it is sufficient.BLISS, Judge, delivered the opinion of the court.
Defendant was indicted in Harrison county for falsely taking the voter's oath at the election to take the sense of the people upon the adoption of the present State constitution. He demurred to the indictment; the demurrer was sustained, and the action of the court was affirmed in the District Court, and the State comes here upon appeal.
The indictment charges that the defendant, before taking the oath, had “personally appeared before Stephen C. Allen, military enrolling officer, and enrolled and caused himself to be enrolled, by and before said enrolling officer, as disloyal and a southern sympathizer, in pursuance of and under order No. 24 of 1862,” giving the time and place of such appearance. The oath was the one prescribed in section 6, article 13, of the constitution, which is substantially recited in the indictment; and by that oath the defendant is charged with swearing that he was well acquainted with the terms of the third section of article 2, and had never directly or indirectly done any of the acts therein specified. The specific act the defendant is charged with doing is described in said section as follows: “or has ever, with a view to avoid enrollment in the militia of this State, or to escape the performance of duty therein, or for any other purpose, enrolled himself, or authorized himself to be enrolled, by or before any officer, as disloyal or as a southern sympathizer,” etc.
Seven objections are raised by the demurrer. One--that the provision under which defendant is indicted is contrary to the constitution of the United States--has already been tried, decided by this court, and will not now be considered. The sixth objection is founded on the charge that “he enrolled and caused himself to be enrolled,” etc., and it is claimed to be contradictory. It so seems at first blush; still, if one enrolls himself, he certainly causes himself to be enrolled. If the language of the article had been followed, the indictment would have been bad for uncertainty, the disjunction “or” making it doubtful which he did. “And” is the proper word in such cases, unless it unites two things that are repugnant. (Whart. Crim. L. §§ 294-5.)
Objection is also made to the indictment because it fails to show the purpose or...
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