State v. Wall
| Decision Date | 28 February 1867 |
| Citation | 39 Mo. 532 |
| Parties | STATE OF MISSOURI, Appellant, v. JOHN H. WALL AND SAMUEL WALL, Respondents. |
| Court | Missouri Supreme Court |
Appeal from DeKalb Circuit Court.
J. C. Parker, for appellant.
I. The court below erred in sustaining the demurrer because the indictment is good for robbery without the clause complained of by the defendants, and the clause claimed to be objectionable may be rejected as surplusage--R. C. 1855, p. 574, § 20; Bishop's Crim. Law, §§ 966-7, 972, and following. Mere surplusage, when there is sufficient matter alleged to indicate the crime and the persons charged, does not invalidate an indictment--R. C. 1855, p. 1176, § 27.
II. Although there might not, in the opinion of the court below, have been sufficient matter set out to constitute the crime of robbery, yet the crime of larceny was sufficiently charged, and the court below should have overruled the demurrer on that ground--State v. Jenkins, 36 Mo. 376.
Vories & Vories, for respondents.
Names, when necessary to be alleged in a pleading, are always descriptive, and must always be strictly proved as alleged or stated. In the indictment in this case the person alleged to have been assaulted and the one robbed are, or may be different persons, and there are no allegations in the indictment to show that they are the same; hence the two allegations are repugnant and the indictment bad--U. S. v. Keene, 1 McLean, 429; Arch. Crim. Prac. 261, 265, and notes; State v. Hand, I Eng. 165; Paige v. The State, 19 Ohio, 423; Bell v. State, 1 Stewart (Tenn.) 42.
The respondents were indicted for robbery in the first degree. The indictment consisted of but one count, and charged that defendants on, &c., feloniously did make an assault upon the person of one J. W. Jones, then and there being, and him the said John W. Jones, in fear and danger of some immediate injury to his person, by assault and violence upon the same, then and there feloniously did put, and then and there, in the presence and against the will of him the said John W. Jones, one United States treasury note, &c., the goods and chattels and personal property of him the said John W. Jones, then and there being found, feloniously did seize, steal, &c.
The defendants demurred to this indictment, and their principal ground of objection alleged that the indictment first charged that defendants made an assault on one J. W. Jones, and then charged that they feloniously put in fear...
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State v. Quinn, 36740.
...157 S.W. 311; State v. English, 67 Mo. 136; State v. Fay, 65 Mo. 490; State v. Jones, 168 Mo. 498; Sec. 3554, R.S. 1929; State v. Wall, 39 Mo. 532; State v. Clark, 223 Mo. 48. (5) Appellant complains of the error of the trial court in permitting the prosecuting attorney, successor to the fo......
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