State v. Rogers

• Court: Missouri Supreme Court
• Writing for the Court: HOLMES
• Citation: State v. Rogers, 37 Mo. 367 (Mo. 1866)
• Decision Date: 28 February 1866
• Parties: STATE OF MISSOURI, Appellant, v. JASPER N. ROGERS, Respondent.

37 Mo. 367

STATE OF MISSOURI, Appellant,

v.JASPER N. ROGERS, Respondent.

Supreme Court of Missouri.

February Term, 1866.

Appeal from De Kalb Circuit Court.

J. C. Parker, for appellant.

I. It is no reason to authorize a court to quash an indictment that the defendant was a soldier in the army of the United States at the time of his being indicted. A soldier is as much subject to civil law as a civilian, upon the principle that the military is, and in all cases, and at all times, ought to be in strict subordination to the civil power.

II. The failure of a clerk to enter upon an indictment the day of its return into court, does not entitle the defendant to his discharge. (State v. Clark, 18 Mo. 432.)

The court below erred in not permitting the clerk thereof to make an entry nunc pro tunc, so as to have the record of such court correspond with the facts. (State v. Clark, 18 Mo. 432; 10 Mo. 359.)

III. The name of the prosecuting witness is not required by the rules of practice in criminal cases to be endorsed on the back of the indictment, as such, in any case, except in cases of trespass against the person or property of another, not amounting to a felony. (R. C. 1855, p. 1170.)

IV. There are two separate counts, improperly and illegally joined, for separate offences in this indictment, but it is a good and sufficient indictment for robbery, including the charge of larceny.

Moore & Rose, for respondent.

1. The defendant being in the United States service, any crime he might have committed while in such service was punishable alone by military court, unless he had been formally demanded, and the United States authorities saw fit to deliver him up to the State authorities, the United States authorities being superior to the State authorities.

II. Because the records show that the indictment was not properly filed with the clerk. It should be filed on the day it is presented by the grand jury, which certainly was not done unless Rogers was arrested under and by virtue of some other indictment.

III. The names of the prosecuting witnesses should have been endorsed on the indictment. (9 Mo. 268; 11 Mo. 510; 19 Mo. 224.)

IV. Because defendant was charged with both robbery and larceny, not properly joined so as to show that one was an ingredient or part of the other.

V. The record shows that it was impossible for the defendant to have been arrested for the offence charged in or by virtue of this indictment. He was arrested on the 8th of September, 1863, and the indictment was filed on the 9th day of September, 1863, at which time the writ issued.

HOLMES, Judge, delivered the opinion of the court.

The indictment was quashed on motion of the defendant. The reasons assigned for the motion were, in substance, as follows: 1. Because the defendant was a soldier in the United States army. 2. Because the indictment was never legally filed in court. 3. That the name of the prosecuting witness...