State v. Roy

• Decision Date: 31 October 1884
• Citation: 83 Mo. 268
• Parties: THE STATE, Appellant, v. ROY.
• Court: Missouri Supreme Court

83 Mo. 268

THE STATE, Appellant,

v.ROY.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Ste. Genevieve Circuit Court.--HON. J. D. FOX, Judge.

AFFIRMED.

D. H. McIntyre, Attorney-General, for the State.

It is no ground for objection that the names of the material witnesses for the State were not indorsed on the indictment. The only way in which such failure could affect the State was that no continuance could be granted it, except upon the affidavit of the prosecuting attorney. R. S. 1879 § 1802; State v. Nugent, 71 Mo. 136; State v. Patterson, 73 Mo. 695.

No brief for respondent.

NORTON, J.

The defendant was indicted at the November term, 1881, of the circuit court of Ste. Genevieve county, for assault with intent to kill. He moved to quash the indictment for the reason that the names of the witnesses who testified before the grand jury were not indorsed thereon. The court sustained the motion, whereupon the state appealed.

Section 1802, Revised Statutes, provides that: “When an indictment is found by the grand jury, the names of all the material witnesses must be indorsed upon the indictment; other witnesses may be subpœnaed or sworn by the state, but no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed on the indictment, unless upon the affidavit of the prosecuting attorney, showing good cause for such continuance.” It will be observed that the statute imperatively requires that the names of the material witnesses must be indorsed on an indictment when found by the grand jury. It must be presumed that this requirement was made for some just and wise purpose, and to give the person criminally charged the opportunity of knowing who were his accusers, and by whom the state expected to establish the charge preferred, in order that he might prepare, not only to meet the charge, but those upon whom the state relied to prove it. Cases may well be supposed where a person indicted would be put to great disadvantage and hazard when called upon to answer whether or not he was ready for trial, in the absence of such information as this statutory requirement would give him.

The license given the state to introduce and have other witnesses than those whose names are indorsed on the indictment, sworn to testify in the cause, in no way impairs the right of defendant to have the names of the material witnesses for the state indorsed on the indictment, nor does it absolve the state from the duty of observing the mandate of the statute in that respect. When the names of the material witnesses for the state, or those testifying before the grand jury returning the indictment, are indorsed thereon, and while the state may have the evidence of other and additional witnesses, still it is not entitled to a continuance to procure the evidence of such witnesses,...