State v. Vincent
| Decision Date | 16 May 1887 |
| Citation | 4 S.W. 430,91 Mo. 662 |
| Parties | The State v. Vincent, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. G. S. Van Wagoner Judge.
Affirmed.
J. C Fisher for appellant.
(1) The indictment must state that the grand jury was "duly empanelled and charged to inquire within and for the body of the city of St. Louis," and true presentment was made etc. R. S., sec. 1774; Const. Mo., art. 2, sec. 12. (2) The instrument forged is a draft, not a check. The indictment does not follow the statute, and charges no offence against the laws of the state. State v. Carpenter, 62 Mo. 594; R. S., secs. 1386, 1388. (3) The indictment does not state with sufficient particularity the part of the check forged. State v. Slay, 3 Stew. [Ala.] 123; R. S., sec. 1388; 57 Mo. 243; 62 Mo. 40; 86 Mo. 33. (4) The instrument, not having been endorsed by defendant, could not have been offered as a true and genuine check. State v. Hardy, 20 Me. 81; Haslip v. State, 2 Neb. 115; State v. Fay, 65 Mo. 490; State v. Chamberlain, 75 Mo. 382. (5) The indictment does not state that the city of St. Louis is in the state of Missouri. State v. Cutter, 65 Mo. 503. (6) The record does not show the presence of all the grand jurors, when the indictment was presented to the court. Whar. Crim. Law [3 Ed.] 150, 154. (7) The defendant was not required, under the law, to plead to a second indictment, while the first was still pending. (8) The record does not show that the defendant was present during the first part of the trial. State v. Barnes, 59 Mo. 154; State v. Barrett, 63 Mo. 300; State v. Able, 65 Mo. 37; State v. Allen, 64 Mo. 67; State v. Dooley, 64 Mo. 146.
B. G. Boone, Attorney General, for the state.
(1) The third count of the indictment upon which defendant (plaintiff in error) was convicted, was drawn under section 1388, Revised Statutes, and complies with the substantial requirements of the statute. Kelley's Crim. Law, p. 384, sec. 693; State v. Fisher, 65 Mo. 439, and cases cited; State v. Pullens, 81 Mo. 387. (2) The right of the state to find a second indictment against a defendant, for the same offence, is distinctly recognized by statute. Upon the finding of the second, the first is to be deemed suspended, and should be quashed. This may be done on the motion of the accused, or on the court's own motion, but whether it is quashed or not, is a matter of no consequence in the prosecution of the second indictment. R. S., sec. 1808; State v. Eaton, 75 Mo. 586.
The defendant was indicted and convicted under section 1388, Revised Statutes, for having in his possession a forged check, knowing the same to be forged, with intent to utter and pass the same as true and genuine. Numerous objections are made to the record, and what is hereafter said will be in answer to them.
1. The motion to dismiss, on the ground that there was an indictment pending against the defendant for the same cause when this one was found, and which was overruled, is not preserved in any bill of exceptions; nor does it appear that any exception was taken to the action of the court. It has been several times held that a motion to quash an indictment must be thus preserved, or the action of the court thereon will not be reviewed. State v. Thurston, 83 Mo. 271; State v. Gee, 79 Mo. 313; State v. Wall, 15 Mo. 208. With much greater reason should such a motion as this be made a part of the record by a bill of exceptions. It may, however, be stated that the statute recognizes the right of the state to file a new indictment for the same offence, and declares that the one first found shall be deemed to be suspended by the second, and shall be quashed. R. S., sec. 1808. It is a matter of no consequence, in proceedings upon the second indictment, whether the first be in fact quashed or not. State v. Eaton, 75 Mo. 586.
2. The record shows that the grand jurors were sworn, and, having received their charge, retired to consider, etc., and under a subsequent date it recites: "On this day the grand jury return to the bar, and, through their foreman, deliver the following indictment as a true bill, to-wit." This shows clearly enough that the indictment was presented by the foreman in open court, and is in full compliance with section 1797, Revised Statutes. It was not necessary that the names of the jurors should be again repeated.
3. The recital in the third count, "and the grand jurors aforesaid, upon their oath aforesaid," sufficiently refers to the first count, wherein it is stated that "the grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged upon their oaths present," etc. The indictment, therefore, shows on its face, not only that the jurors were duly impaneled and sworn, but that they were impaneled and sworn to inquire of offences within and for the city of St. Louis. Had the indictment failed to allege that the grand jurors were impaneled, sworn, or charged, the omission would not have rendered the indictment invalid. R. S., sec. 1821.
4. It sufficiently appears from the words of the first count of the indictment before quoted, that the city of St. Louis is within the state of Missouri, and the words of the third count, "at the city of St. Louis aforesaid," show that the offence charged was committed in the state of Missouri.
5. The instrument set out in the indictment, both by its purport and its tenor, is in the following words and figures:
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State v. Anderson
...to say that it was not essential to further proceedings on the second that the first be quashed. State v. Eaton, 75 Mo. 586; State v. Vincent, 91 Mo. 665, 4 S. W. Rep. 2. The defendant insists, on this plea to the jurisdiction of the Laclede circuit court, that the order of Judge WALLACE ca......
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State v. Anderson
...to say that it was not essential to further proceedings on the second that the first be quashed. State v. Eaton, 75 Mo. 586; State v. Vincent, 91 Mo. 662, 4 S.W. 430. 2. defendant insists, on his plea to the jurisdiction of the Laclede circuit court, that the order of Judge Wallace calling ......