State v. Sutton

• Decision Date: 31 October 1876
• Citation: 64 Mo. 107
• Parties: STATE OF MISSOURI, Respondent, v. R. P. SUTTON, Appellant.
• Court: Missouri Supreme Court

64 Mo. 107

STATE OF MISSOURI, Respondent,

v.R. P. SUTTON, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Randolph Circuit Court.

H. S. Priest, for Appellant, cited: City of Moberly vs. Ferguson Co., 62 Mo. 77; State vs. Hollenscheit, 61 Mo. 302; Comm. vs. Hudson, 11 Gray, 65; Knaup vs. Piqua Bank, 1 Ohio, St. 603; Lessee of Mitchell vs. Eystee, 30 Wis. 384; Ashlock vs. Commonwealth, 7 B. Mon. 44; 38 Mo. 402; 21 N. Y. Eq. 424.

J. L. Smith, Att'y Gen'l, for Respondent, cited: Sess. Acts 1875, p. 402, § 2; State vs. Porter, 26 Mo. 201; State vs. Pitts, 58 Mo. 557.HENRY, Judge, delivered the opinion of the court.

At an adjourned term of the Moberly Court of Common Pleas a grand jury returned an indictment against defendant containing two counts; the first for larceny, charging defendant with having stolen four caddies of tobacco from the St. L., K. C. & N. R. R. Co.'s depot at Moberly, the property of Thomas, Mason & Florissell. The second count charged defendant with having received four caddies of tobacco from Frank Carr, knowing that said Carr had stolen them from the possession of the St. L., K. C. & N. R. R. Co., and that they were the property of Mason & Florissell.

Defendant filed his motion to require the State to elect on which count of the indictment it would go to trial, which motion was by the court overruled; and this, it is urged, was error.

In the case of the State vs. Porter (26 Mo. 201) the court held that “if the several counts referred to different transactions, in point of fact, it is a matter of discretion with the court to compel the prosecutor to elect upon which count he will proceed, and the power ought to be exercised in cases where the offenses are distinct and of a different nature, and calculated to confound the defense. Where the offenses are of the same character, differing only in degree, as for example forging a note and publishing it knowing it to be false, the defendant may be tried upon both charges under the same indictment. It is usual to frame several counts where only a single offense is intended to be charged, for the purpose of meeting the evidence as it may transpire at the trial; and in such cases the court will not compel the prosecutor to elect.”

In the case at bar the several counts refer to the same transaction in point of fact, and only a single offense was intended to be charged. The two counts were resorted to to meet the evidence as it might transpire on the trial. The party could not have been convicted of both stealing the tobacco and receiving it, knowing it to have been stolen. If guilty under the first, he could not have been convicted under the second count, and vice versa. The court did not err in overruling the motion.

It is insisted that the Moberly Court of Common Pleas had no jurisdiction of the cause; that the offense, if at all, was committed in Sugartree township, in Randolph county, before the passage of the act establishing the Moberly Court of Common Pleas; that said act was prospective in its operation and did not take from the Randolph Circuit Court jurisdiction of the cause.

The Court of Common Pleas was established for the township of Sugartree, in the county of Randolph, and the fourth section of the act conferred upon it, within the limits of Sugartree township, “exclusive original jurisdiction in all civil actions, both in law and equity, in all actions involving sums not exceeding fifty thousand dollars, to the same extent as circuit courts have, and concurrent jurisdiction with justices of the peace to the same extent as circuit courts; and said court shall also have and exercise, within the limits aforesaid, exclusive original jurisdiction in all criminal actions as are had and exercised by the circuit courts of the State.” (Sess. Acts, 1875, p. 401.)

If a new county had been formed by taking a portion of the territory of Randolph county and thrown into another judicial circuit, would it be contended that, for an offense committed in such territory before the act creating the new county, the party would be indictable only in Randolph county? Or that he could be indicted in Randolph county at all? If the views of defendant's counsel are to prevail, then no civil action, where the cause of action accrued in Sugartree township before the act establishing the Court of Common Pleas was enacted, could be commenced in that court because the jurisdiction of the circuit court of Randolph County at the date of the passage of the act had attached, as the counsel states it.

There is but one case cited by appellant that bears upon this question. (Ashlock vs. Commonwealth, 8 B. Mon. 44.)

An act was passed by the legislature of Kentucky, conferring upon the city council of Lexington exclusive jurisdiction of all pleas of the commonwealth, arising within the limits of that city, except cases of felony.

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