State v. Shoemaker

• Decision Date: 30 September 1841
• Citation: 7 Mo. 177
• Parties: THE STATE v. SHOEMAKER.
• Court: Missouri Supreme Court

7 Mo. 177

THE STATE

v.SHOEMAKER.

Supreme Court of Missouri.

September Term, 1841.

ERROR TO THE CIRCUIT COURT OF JACKSON COUNTY.

YOUNG, Circuit Attorney. The first and second counts, it is believed, are defective; but it is contended that the third count is good; if so, the court should have given judgment against the defendant. See 1 Chitty C. L. 205, and 522, side paging; The People v. Curling, 1 Johns. R. 320. Authorities cited to sustain the indictment: Rev. St. of Mo. 1835, § 7, p. 184, and § 21, p. 187; Chitty C. L. 238-9, side paging; Hildebrand v. The State, 5 Mo. R. 550; Arch. Crim. Pl. 55-56.

FRENCH & SAWYER, for Defendant. 1st. That it is not alleged in either the first or second counts, that the counterfeit coin were uttered and passed as true. See statute, Crimes and Punishments, art. 4, § 21. 2nd. Because the second count alleges that the counterfeit coin passed was in imitation of a piece of silver current in this State, omitting the word coin. See statute, Crimes and Punishments, art. 4, § 7, and same article, § 21. 3rd. Because there is no venue laid to the allegation of the fact, that the counterfeit coin passed was made in imitation of coin current in this State. 4th. Because it is not alleged in said third count, that the counterfeit coin passed, was in imitation, and similitude of any coin current in this State, at the time the same was passed. 5th. Because the jury have not found of what degree of forgery the defendant is guilty. Practice in Criminal Cases, art. 7, § 1. 6th. Because it is not alleged in said third count, that the coin passed was made and counterfeited in imitation of a piece of money and coin of the State of Missouri.

NAPTON, J.

Joseph Shoemaker was indicted by the grand jury of Jackson county for forgery. The indictment contains three counts, all framed upon the 21st section of the 4th article of the act concerning Crimes and their Punishment; the two first counts, containing a charge of passing as true, counterfeit money; and the third count for attempting to pass counterfeit money. The two first counts are abandoned as defective; and the verdict of the jury being only on the third count, it is necessary only to state the substance of the last count. That count charged, that the defendant on, &c., at, &c., one piece of false and counterfeit money and silver coin, made and counterfeited in imitation and similitude of a piece of good, legal, and current money and silver coin of this State, called a Mexican dollar, of the value of one dollar, at that time current within this State by law and usage, and in actual use and circulation within this State, then and there, feloniously, did offer and attempt to pass, utter and publish as true, to one B. P. Franklin, with intent then and there him the said Franklin to defraud, he the said defendant at the time when he so offered and attempted to pass as true said false and counterfeit money and silver coin, then and there well knowing the same to be false and counterfeit against the form, &c. Upon this indictment the defendant was tried and the jury found him guilty “in manner and form as charged in the indictment, and assessed his punishment to imprisonment in the penitentiary for seven years.” The defendant moved to arrest the judgment because of defects in the indictment, which motion was sustained by the court, and the court, upon the evidence given, ordered the defendant into the custody of the sheriff to await the further prosecution of the offense. The circuit attorney excepted to the opinion of the court in staying the judgment, and brought the record to this court by writ of error. The defendant in error relies upon two grounds to maintain the opinion of the Circuit Court in arresting the judgment; material defects in the indictment, and a defective verdict. I will first examine the objections to the verdict.

The 14th section of the 9th article of the act concerning Crimes and Punishments, provides, that upon an indictment for any offense, consisting of different degrees, as prescribed by this act, the jury may find the accused not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.” The first section of the 7th article further provides, that “upon the trial of any indictment for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty.”

The proper construction of these sections, was incidentally noticed by this court in the case of Watson, 5 Mo. R. 497; in the case of Mallison, 6 Mo. R. 399; and in Plummer's case, 6 Mo. R. 240. It was held by the court in those cases, though the point was only collaterally before them, that the 14th section could not have been intended to dispense with the rules of the common law, and I may add, of common justice, that the allegation and proofs must correspond. If the inferior degree of offense, of which the party is convicted, be...