State v. Overstreet

• Decision Date: 21 May 1895
• Citation: 128 Mo. 470,31 S.W. 35
• Parties: STATE v. OVERSTREET.
• Court: Missouri Supreme Court

31 S.W. 35

128 Mo. 470

STATE v. OVERSTREET.

Supreme Court of Missouri, Division No. 2.

May 21, 1895.

SPECIAL GRAND JURY — POWERS.

1. The making of an order that a venire for a special grand jury be issued is within the discretion of the trial court.

2. When once duly impaneled, a special grand jury may inquire and presentment make of any offense committed within the jurisdiction of the court not barred by limitations.

3. When a special grand jury has been impaneled, the adjournment of the regular grand jury will be presumed.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

James Overstreet was convicted of larceny from a dwelling house, and appeals. Affirmed.

Zach J. Mitchell, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

GANTT, P. J.

This is an appeal from the circuit court of St. Louis county. The defendant was convicted of larceny from a dwelling house. He has filed no brief, but an examination of the record discloses that the only exceptions open for review here are the refusal of the circuit court to quash the indictment and the giving of instructions.

1. No specific error in any instruction has been pointed out, and a careful scrutiny has discovered none. They are simple, plain, and correct.

2. The defendant seems to have relied chiefly upon his motion to quash the indictment because it was preferred by a special grand jury, impaneled and sworn after the regular grand jury for the term had been discharged, for an offense alleged to have been committed prior to the impaneling of the regular grand jury. There is no merit whatever in the point. The motion, on its face, recites the adjournment of the regular grand jury, and, if it did not, it would be presumed in favor of the jurisdiction of a court of general jurisdiction. State v. Dusenberry, 112 Mo. 289, 20 S. W. 461. In this case it affirmatively appears from the record that after the adjournment of the regular grand jury facts came to the knowledge of the prosecuting attorney which, in his opinion, would authorize an indictment for this offense; that the court thereupon issued an order of record that a venire for a panel of a special grand jury be issued to the sheriff, which was done, and the jury impaneled. This was a matter within the discretion of the trial court, and, like all matters of discretion, will not be reviewed here unless abused. We know of no law that restricts the investigation of a special grand jury to those...