State v. Stewart

• Decision Date: 31 January 1887
• Citation: 2 S.W. 790,90 Mo. 507
• Parties: The State v. Stewart, Appellant
• Court: Missouri Supreme Court

2 S.W. 790

90 Mo. 507

The State v. Stewart, Appellant

Supreme Court of Missouri

January 31, 1887

Appeal from Audrain Circuit Court. -- Hon. Elijah Robinson, Judge.

Affirmed.

W. O Forrist for appellant.

(1) The indictment in this case is not such as is guaranteed by sections 12 and 22, article 2, of the Bill of Rights. It should be an indictment good in substance at common law. In re Slater, 72 Mo. 106; State v. Kelm, 79 Mo. 515; State v. Hayward, 83 Mo. 304. The indictment at common law and guaranteed by the constitution is one that charges facts and not legal conclusions; one that answers the accused truly, when he demands the cause and nature of the accusation against him; one that states all the facts constituting the offence and necessary to be proven on the trial; so, one stating the facts as will enable the court to judicially determine on the face of it whether the crime sought to be alleged exists, and thus give the accused the benefit of a demurrer, if he desires to take the opinion of the court as to whether the alleged facts constitute the given offence; an indictment which sets out the essential facts with such particularity as will sustain a plea of former conviction or acquittal of the accused, should he be proceeded against again, and to enable the court to determine and see that the accused is put on trial for the identical matters which were before the grand jury, and upon which the indictment was returned. To this extent are the authorities English and American, including the opinions of this court. State v. Hayward, 83 Mo. 307; 1 Bishop Crim. Proc secs. 81, 86, 88, 319; United States v. Cruikshank, 92 U.S. 542, 557; Bradlaugh v. Regina, E. L. R. 3; 2 B. D. 607; 1 Whart. Plead. and Prac. [8 Ed.] secs. 151, 166; Biggs v. People, 8 Bart. 547; 1 Starkie's C. P. 73; Staunford, 181; Doud v. People, 9 Bart. 675; United States v. Cook, 17 Wall. 174; Arch. Crim. Plead. [15 Ed.] 43; 2 Story on Con., sec. 1785. As an illustration and logical sequence of the foregoing characteristics of a constitutional indictment, every elementary writer upon criminal law in England and America, and every court of both countries, have concurred in holding that, at common law, where the offence consists of words written or spoken, such words must be set out in the indictment. This is most emphatically and notably so in indictments for sending threatening letters, the case at bar. Whart. Plead. and Prac. [8 Ed.] sec. 167, and authorities cited; 2 Russ. Crimes, [5 Ed.] 721; 2 East's Pleas of the Crown, chap. 26, sec. 2, pp. 1116, 1125; Hunter's case, 2 Leach, 631; 3 Chitty's Crim. Law [4 Ed.] 843; 1 Marsh. 522; 6 East, 418. The indictment in the case at bar is in no manner such a one as the constitution requires. (2) The court should have construed the letter. It was error to leave its construction to the jury.

B. G. Boone, Attorney General, for the state.

An indictment under section 1306, Revised Statutes, for attempting to blackmail by sending a letter threatening to accuse one of a felony, which clearly alleges the several facts which constitute the statutory offence, is sufficient, following the language of the statute. Under the common law it was necessary to set out the threatening letter according to its tenor. Arch. Crim. Plead. and Evid. [10 London Ed.] 606; 2 Bishop's Crim. Proc. [2 Ed.] secs. 1025, 1026. Our statute obviates the necessity of setting out the letter according to its tenor, the purport only being required. R. S., sec. 1816; Kelley's Crim. Law, sec. 587. The letter, having been properly described in the indictment, and, upon being produced and identified as the one admitted to have been written by the accused, it was properly admitted in evidence.

OPINION

Norton, C. J.

The defendant was tried and convicted under an indictment charging him with sending a letter to one R. G. Lee, threatening to charge him with stealing a flock of sheep, for the purpose of extorting money from him. It is claimed by counsel for defendant that the indictment is insufficient, and, therefore, the court erred in overruling his motion in arrest of judgment. The indictment is founded on section 1306, of the Revised Statutes:

"Every person who shall knowingly send or deliver, or shall make, and, for the purpose of being delivered or sent, shall part with the possession of any paper, letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark or other designation, threatening therein to accuse any person of any crime or felony whatever, or to do any injury to the person or property of any one, with a view or intent to extort or gain any money or property of any description belonging to another, shall, on conviction, be adjudged guilty of an attempt to rob, and shall be punished by imprisonment in the penitentiary not exceeding five years."

The indictment in question contains four counts and sets forth with great particularity all the facts necessary to constitute the offence created by the above section, and in this respect follows the language of the statute, and is therefore, sufficient. It does not, however, set forth a copy of the letter alleged to have been written and sent, but only sets it forth according to its purport. It is insisted by counsel that the failure to set forth the letter in haec verba renders the indictment bad. This contention would be well founded, but for the fact that it is provided by section 1816, Revised Statutes, as follows: "In all other cases, whenever it shall be necessary to make any averment in an indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation, by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile of the whole or any...