State v. Simpson

• Decision Date: 30 April 1878
• Citation: 67 Mo. 647
• Parties: THE STATE v. SIMPSON, Appellant.
• Court: Missouri Supreme Court

67 Mo. 647

THE STATE

v.SIMPSON, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Benton Circuit Court.--HON. WM. S. SHIRK, Judge.

Lay & Belch and James H. Lay for appellant.

The doctrine sought to be established here is simply this: That any citizen may be tried for any offense, no matter how heinous it may be, upon the affidavit of an exprosecuting attorney that the paper on which he is tried is, in substance, a copy of an indictment found against him by the grand jury. This affidavit has not even the sanction of an official position or oath. The affidavit, too, is made by a person in nowise responsible for its falsity if untrue, and of a person who is not, by law, the custodian of the indictment about which he swears. It may be that the case at bar, in itself, will not be considered of very great importance; but the principle here involved lies at the foundation of the grand jury system, and may apply as well to a case of murder in the first degree. If the system itself, although sanctioned by the ablest judges and wisest law-makers who have ever lived, is not up to the supposed advancement of the day and generation, let it be abolished by all means. But to preserve the form simply, without the substance, is little better than a farce.

J. L. Smith, Attorney-General, for the State.

If parties who stand indicted have but to get rid of the paper on which the accusation is written in order to forever silence the prosecution, or if a like result is to follow from an accidental loss or destruction thereof, it is well that it should be known. It would be a very expedient mode of facilitating criminal practice in the courts. The immense amount of costs incurred for witnesses, jurors, officers, &c., might as well be saved. Few cases would be called in which the indictment would not be lost or destroyed.

HENRY, J.

At a regular term of the Benton circuit court in August, 1874, the defendant was indicted for laboring on Sunday. At the August term, 1875, of said court, the indictment having been lost, the court permitted the State to supply it by a copy sworn to be a literal copy, by Dee Rees, who was prosecuting attorney when the indictment was prepared. The question is, Can a lost indictment be so supplied? The State relies upon Wag. Stat., section 14, page 1137, which is as follows: “When any record of judgments or executions, or any orders or allowances of any probate court or county court, or any inventory, sale-bill or appraisement, or other document or paper filed, or, being in any court of record or justice's court, shall have been mutilated, lost or destroyed, stolen or carried away, any person interested in any such record or paper, or his or her agent or attorney, may make out a statement in writing, verified by affidavit, setting out, as near as may be, the full contents of said lost, mutilated or destroyed record or papers, and file the same in the clerk's office or office of the justice of the peace wherein said lost, mutilated or destroyed record belonged.” The 15th section provides that when any such statement shall be filed, &c., the clerk or justice of the peace, if a judgment or execution is intended to be supplied, shall issue a summons, to be served in like manner and time as in ordinary suits at law, and upon its return the defendant may file his answer as in ordinary cases at law, and the cause shall be tried at the term of the court at which answer is filed, &c., and provides for a judgment. If the statement is intended to reinstate an inventory, sale-bill or order of any probate or county court, no summons shall be issued, but the party seeking to establish the same shall cause a notice in writing, setting forth the substance of said papers or orders, to be served upon the administrator or executor of the estate affected by said order, &c. We do not think that these sections have any reference to criminal proceedings. The second section, prescribing the proceedings to be had on the statement filed, clearly relates to civil proceedings; and the first section, requiring an affidavit of loss and contents, and that the contents may be stated “as near as may be,” certainly was not intended as sufficient to supply an indictment. The second section carefully guards the interests of parties to civil suits by requiring notice, but makes no provision of a like character in favor of a defendant who may be indicted for the highest crime known to the law. There is nothing except the general language, “or other document or paper filed, or being in any court of record or justice's court,” to warrant a construction that would embrace a lost indictment, and those words are clearly restricted in their meaning by the context and the mode of proceeding prescribed in the succeeding section.

It is well settled that, independent of any statute, a lost, mutilated or destroyed record may be supplied. The contents of a lost or destroyed record may be established by secondary evidence in a suit between individuals, and there is no reason for confining this to civil proceedings. Why should not the same doctrine apply to records in a criminal case? The record is in the same custody and made by the same authority, and is of no less solemn a character in the one case than the other. This would probably be conceded, but it is said that an indictment stands upon a...