State v. Wishon

• Decision Date: 31 January 1852
• Citation: 15 Mo. 503
• Parties: THE STATE v. WISHON.
• Court: Missouri Supreme Court

15 Mo. 503

THE STATE

v.WISHON.

Supreme Court of Missouri.

January Term, 1852.

ERROR TO CRAWFORD CIRCUIT COURT.

GARDENHIRE, Attorney-General, for The State, cited: State v. Brown, 8 Mo. R. 210; Neales v. State, 10 Mo. R. 498; State v. Rector, 11 Mo. R. 28.

HAYDEN, for Defendant.

RYLAND, J.

Benjamin Wishon was indicted by the grand jury of Crawford county at the May term of the Circuit Court, in the year 1851, for selling intoxicating liquor in a less quantity than one quart without a license.

The indictment contains two counts. The defendant appeared to the indictment and moved the court to quash the same. The court sustained this motion and quashed the indictment. The State, by her circuit attorney, excepted to the ruling of the court and brings the case here by writ of error.

The question for our consideration involves the sufficiency of the indictment, the first count of which is as follows:

The grand-jurors of the State of Missouri, impanneled, &c., in and for the body, &c., upon their oath present, that Benjamin Wishon, late of the county of Crawford, on, &c., at, &c., with force and arms, at Crawford county aforesaid, unlawfully did directly sell intoxicating liquor in a less quantity than one quart, to-wit: one pint of whisky of the value of ten cents to one Michael Donivan, and one-half pint of brandy of the value of ten cents to one M. Donivan then there being, without the said Benjamin Wishon then and there having a license for that purpose continuing in force, contrary to the form,” & c. The second count charges that the defendant sold intoxicating liquor in less quantity than one quart, to persons to the grand-jurors unknown without his having a dramshop license continuing in force, &c. This second count is defective. It does not deny the having of a license generally, but confines the negation to a dramshop license. This is not sufficient.

The first count has this averment: it charges the sale to be without a license, in general terms, without specifying any particular kind of license. Under the decisions of this court, in the cases of State v. Brown, 8 Mo. R. 210, and Neales v. State, 10 Mo. R. 498, this first count must be considered good and sufficient. To an indictment containing several counts, some of which are good and sufficient and others defective and insufficient, a motion to quash should not be sustained. If the indictee wishes to avail himself of any defect, or of any imperfection in the indictment, he should move the court to quash the defective counts only, and not quash the whole indictment where one count is good. State v. Rector, 11 Mo. R. 28.^(a) Motions to quash indictments are always addressed to the discretion of the court. The court can overrule such motions and compel the defendant to plead or demur.

By the common law, the courts may, in their discretion, quash any indictment for any such insufficiency in the body of it as will render a judgment given on it against the defendant erroneous; but they are in no case bound so to do, ex debito justitiae. Courts cannot strike out counts out of an indictment, for it is the finding of the grand jury. 2 Strange, 1026; 3 Bac. Abr. Indictment, K.

The courts can quash any defective indictment or any insufficient count in the indictment. Such has ever been the practice in this State. The difference between striking out and quashing counts I apprehend is this, the motion to strike out was based upon the ground that the counts were too numerous. In the case referred to in Strange, Rex v. Peutress, an assault was laid twenty-one different ways. On motion to strike out the...