State v. Wall

• Citation: 15 Mo. 208
• Parties: STATE OF MISSOURI v. WALL.
• Decision Date: 31 October 1851
• Court: United States State Supreme Court of Missouri

15 Mo. 208

STATE OF MISSOURI

v.WALL.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM STODDARD COUNTY CIRCUIT COURT.

LACKLAND, for The State. The indictment substantially sets forth the offense as described in the act creating it. It charges the defendant at, &c., on, &c., as a lawyer, being employed, did practice the law in part for a livelihood, without license, &c. It is submitted, that this indictment sets forth to a reasonable intendment the facts constituting the offense, therefore the court erred in quashing it. In an indictment for a statute offense, it is sufficient if the offense is substantially set forth, though not in the exact words of the statute. United States v. Bachelder, 2 Gallis. 15. In general, an indictment need not adopt the very words of the statute; the same in substance, to a reasonable intendment, is sufficient. State v. Little, 1 Tenn. R. 331. A variance between the language of the statute creating the offense, and the indictment, will not vitiate the indictment if the words used are equivalent to those in the statute. State v. Hickman, 3 Halst. 299. An indictment for a statute offense, which substantially adopts the language of the statute is good. State v. Blackford.

THOMAS B. ENGLISH, for Respondent. The indictment in this case is clearly bad. It does not pursue the words of the statute creating the offense charged. Being merely malum prohibitum--an offense created merely by statute--the words of the law should have been strictly pursued. Chit. Crim. L. 282; 5 Mo. R. 358-9, State v. Comfort. The object of the statute clearly was, to tax only such as followed “the practice of the law for a livelihood and as a business.” The indictment does not bring the defendant within this description. For aught that appears in it, he may not have followed the practice of the law “““as a business” and “for a livelihood.” He therefore could have been guilty of no offense. For the courts will not create and punish offenses by construction and mere intendment. This would violate the fundamental maxim that all are considered as innocent until the contrary be shown. No exceptions to the judgment of the court were preserved. State v. Hannan, 10 Mo. R. 466.

RYLAND, J.

The defendant, Richard Wall, was indicted by the grand jury of Stoddard county at the September term of the Circuit Court, 1850, for practicing law for a livelihood, without first having obtained a license therefor, under the statute passed in February, 1847, entitled an ...