State v. Patterson

• Decision Date: 18 December 1900
• Citation: 159 Mo. 98,59 S.W. 1104
• Parties: STATE v. PATTERSON.
• Court: Missouri Supreme Court

59 S.W. 1104

159 Mo. 98

STATE v. PATTERSON.

Supreme Court of Missouri, Division No. 2.

December 18, 1900.

EMBEZZLEMENT — INDICTMENT — SUFFICIENCY — ATTACK BY DEMURRER AND MOTION IN ARREST.

1. The sufficiency of an indictment may be raised by demurrer or motion in arrest.

2. An indictment for embezzling funds of a commission company named is bad if it does not allege that the company is either a corporation or partnership, as only the property of corporations, companies, or individuals is the subject of embezzlement under the statute, and it cannot be presumed that it is composed of individuals from the fact that "Company" seems to be a part of its name.

Appeal from circuit court, Stoddard county; Frank R. Dearing, Special Judge.

J. N. Patterson was convicted of embezzlement, and he appeals. Reversed.

Geo. Houck and Ralph Wammack, for appellant. The Attorney General and Sam B. Jeffries, for the State

BURGESS, J.

The defendant was indicted in the circuit court of Stoddard county under section 3555, Rev. St. 1889, for embezzling moneys which came into his possession by virtue of his office as sheriff of said county. Defendant filed motion to quash the indictment upon various grounds assigned in the motion. The motion was overruled, and he saved his exceptions. Upon trial he was found guilty by the jury, and his punishment fixed at two years' imprisonment in the penitentiary. He thereafter in due time filed motions for new trial and in arrest, which were overruled. He appeals.

While it is well settled that the power to quash an indictment is a discretionary one, and that the supreme court will not, in any case of felony, reverse a judgment of conviction because the court below refused to quash the indictment under which the conviction was had, its sufficiency may be raised by demurrer or a motion in arrest. State v. Rector, 11 Mo. 28; Same v. Conrad, 21 Mo. 271; Same v. Lichliter, 95 Mo. 402, 8 S. W. 720. The motion in arrest is leveled at the indictment, which defendant insists is fatally defective upon various grounds. It must be conceded that the indictment is very inartistically drawn, but most of the objections which are urged against it seem to us to be either too technical to render it invalid, or are not borne out by the record. But an objection is made to it upon the ground that it does not allege that the Adler-Goldman Commission Company, whose moneys defendant is charged with embezzling, was either a corporation or co-partnership, and the question is, was it necessary to do so in order to make a good indictment? The indictment...