State v. Wagner

• Decision Date: 16 December 1893
• Parties: STATE v. WAGNER.
• Court: Missouri Supreme Court

24 S.W. 219

118 Mo. 626

STATE v. WAGNER.

Supreme Court of Missouri, Division No. 2.

December 16, 1893.

LARCENY — INDICTMENT — SEPARATE COUNTS.

1. Prefixed to each count of an indictment should be a statement showing that it was found by the grand jury.

2. The words "articles aforesaid," used in a count with reference to a prior count, will not draw into the count the allegations of value in the prior count.

3. The taking of various articles at the same time and place, from the same person, constitutes but one larceny, and should be charged in one count as one offense.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Joseph Wagner was convicted of grand larceny, and appeals. Reversed.

N. T. Gentry, for appellant. R. F. Walker, Atty. Gen., for the state.

SHERWOOD, J.

The defendant was tried and convicted of grand larceny, the prosecution being grounded on section 3535, Rev. St. 1889. His punishment was assessed at two years in the penitentiary, and he appeals to this court.

The following is the indictment on which defendant was tried:

"State of Missouri, county of Boone — ss.:

In the circuit court, at June term, A. D. 1893.

"(a) The grand jurors for the state of Missouri, summoned from the body of Boone county, impaneled, charged, and sworn, upon their oaths present that one Joseph Wagner, late of the county aforesaid, on the twenty-sixth day of November, 1892, at the ____, county of Boone and state aforesaid, did six five-dollar bills, one ten-dollar bill, and two two-dollar bills, the said bills being good and lawful money of the United States, and of the aggregate value of forty-four dollars, then and there being the money and property of one Levi Hanks.

"(b) Also one knife, to wit, a pocket knife with bone handle and two blades, of the value of one dollar, then and there being the goods, chattels, and property of the said Levi Hanks.

"(c) That the moneys aforesaid and the knife aforesaid, then and there being the money and property, goods and chattels, of the said Levi Hanks, he (the said Joseph Wagner) feloniously did steal, take, and carry away, against the peace and dignity of the state."

This indictment, as will be noticed, is divided into three separate and distinct paragraphs, which for convenience sake have been respectively marked "(a)," "(b)," and "(c)." Neither paragraph (a) nor (b), it will be seen, makes any charge against defendant, except to say that he "did," but what he did is not stated. Probably, it was intended to charge he did feloniously steal, take, and carry away the articles therein mentioned; but this the paragraph does not do. It would seem that the paragraphs were intended as separate counts, and in the lower court were so treated by the defendant moving that the state be compelled to elect upon which count it would proceed, but this motion was denied. If these paragraphs are any of them good, then the general verdict returned can be upheld; otherwise, not. Paragraph (c) is the only one that charges defendant with any criminal act, and so it is unnecessary to notice the others, except to the extent and in the manner to be presently stated. Paragraph (c) will therefore be treated as a separate count, for which it seems to have been designed, and then its sufficiency will be determined.

1. The old and familiar rule is that "every separate count should charge the defendant as if he had committed a distinct offense," etc. In a word, each count in an indictment must be complete in itself as to the description of the offense, and to each count must be prefixed a statement that the jury "super sacramentum suum ulterius praesentant," and without such commencement the count will be bad. The following authorities fully support these positions: 1 Chit. Crim. Law, 175, 249; 1 Bish. Crim. Proc. (3d Ed.) §§ 132, 426, 429; State v. McAllister, 26 Me. 374; Malone, Crim. Briefs, and cases cited; State v. Longley, 10 Ind. 482; State v. Phelps, 65 N. C. 450; Whart. Crim. Pl. (9th Ed.) § 95. Reference to time, place, or person, or to the oath taken by the jurors, as mentioned in a previous count, though defective, will be sufficient. 1 Chit. Crim. Law, 175; 1 Bish. Crim. Proc. §§ 132, 431; Whart. Crim. Pl. (9th Ed.) § 299; State v. Lea, 1 Cold. 175; Phillips v. Fielding, 2 H. Bl. 131. But though time, place, or person, etc., may thus be referred to by the use of the words "said," "aforesaid," "same," etc., yet such manner and means of reference has its limits; it cannot supply descriptive averments which enter into the vitals of the offense. Whart. Crim. Pl. § 299. Bishop says:...