State v. Woodward
| Decision Date | 31 March 1855 |
| Parties | THE STATE, Appellant, v. WOODWARD, Respondent. |
| Court | Missouri Supreme Court |
1. See State v. Kennon, 21 Mo. 262.
2. The supreme court will not interfere with the discretion exercised by an inferior court in quashing one or more bad counts in an indictment, although it would not have been bound to quash. In this state, the practice of quashing bad counts and allowing good ones to stand, is permitted.
Appeal from St. Louis Criminal Court.
Woodward was indicted under the 2d section of the act concerning “Lotteries.” (R. C. 1845.) The indictment contained four counts. The first count charged that the defendant, on, &c., at, &c., “did unlawfully sell to divers persons unknown to the jurors aforesaid, tickets in a certain device in the nature of a lottery, called a. raffle, which said raffle embraced certain books and other property to the value of five hundred dollars, and the value of which tickets was two dollars and fifty cents, against the peace and dignity of the state.”
The other three counts it is unnecessary to set out, as they were admitted to be bad. A motion to quash was filed by the defendant, which was sustained as to the last three counts, and overruled as to the first. Subsequently, a motion to quash the first count was sustained. The state excepted, and appealed to this court.
Clover, (circuit attorney,) for the state, that the first count was good, cited 8 Mo. Rep. 612. 3 Denio, 99. 23 Wend. 420. 6 N. H. Rep. 53. 5 Pick. 41.
Cline & Jamison, for respondent.
I. The quashing of the 2d, 3d and 4th counts, being unexcepted to by the state, had the effect to quash the entire indictment. II. The first count was bad. 1. A raffle is not a lottery. (2 Const. Rep. 128.) 2. The number of tickets sold, and value of each, should have been stated. . 3. The indictment does not follow the language of the statute creating the offence, by charging the defendant with selling “ lottery tickets.” ( State v. Byron, 20 Mo. Rep. 1 Bailey, 144. 4 Porter, 410. 3 Penn. 142. 1 Nott. & McCord, 91. 3 McCord, 442. 2 Hill's (S. C.) Rep. 459. 6 Maryland, 263. 31 Maine, 401. 23 Miss. (1 Cushman,) 525. 2 Green (Iowa,) 162. 3 Grattan, 590. 1 Gill, 54. 1 English, 165.) III. As the count was bad, the court below properly exercised its discretion in quashing it.
The indictment is substantially the same as that against Kennon. The court sustained the first motion of the defendant, made to quash the indictment, so far as to quash the second, third and fourth counts in the indictment, and overruled the said motion as to the first count. The court afterwards sustained a second motion to quash the first count; so the indictment is entirely quashed.
This court has repeatedly said that the courts below were not bound to quash indictments ex debito justitiæ, and that the practice had better be abandoned; yet, we will not reverse because the court has quashed a bad indictment, or a bad count in an indictment. We see, really, no serious...
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