Vaughn v. State

• Decision Date: 30 April 1837
• Citation: 4 Mo. 530
• Parties: W. L. & G. VAUGHN v. STATE OF MISSOURI.
• Court: Missouri Supreme Court

4 Mo. 530

W. L. & G. VAUGHN

v.STATE OF MISSOURI.

Supreme Court of Missouri.

April Term, 1837.

CHAMBERS, Circuit Attorney, for the State. This was an indictment against the defendants for exercising the business of an auctioneer without having license. Upon the trial of the cause the jury rendered a verdict of guilty, and found that the amount of goods sold by the defendants, was $250, which gave the State a right to the sum of $7 50, for the revenue on the amount sold. Instructions were asked on both sides; some were given, and others refused by the court. After the verdict was rendered, the defendants moved for a new trial, which was refused; and the court further refused to sign a bill of exceptions in the cause, containing the evidence. A motion was made in arrest of judgment, which was also overruled by the court. In this, the court likewise refused to sign the bill of exceptions. The question as to the right of the parties to their bills of exceptions in this cause, does not appear to be a legitimate point between the State and the defendants in a writ of error. The better practice would seem to be, to try that question on a motion for a mandamus against the Judge.

But if this is a legitimate question in this proceeding--then I contend, that the court properly refused to sign the bill of exceptions, upon the following authorities: 4 Hawkin's Pleas of the Crown, 457; 2 Mo. R, 213; 13 Johns. Rep. 90; Phillips Ev. 213; 1 Chitty on Crim. Law, 503; 3 Mo. R. 334; State v. Mitchell, 3 Mo. R. 283.

No decision of this court can be had on the judgment of the court below in giving and refusing the instructions, and in refusing a new trial, unless the bill of exceptions is first made a part of the record. From this view of the case, I hold, that there are but two points presented to this court for its action, at this time, (to wit:) 1st. Does the indictment sufficiently charge the offense contained in the second section of the act relating to auctioneers? See Revised Laws, 161, § 2. That the offense is well charged: see 2 Gallison Rep. 15; Cox Dig. 357, page 13. 2nd. Were the parties properly joined in the same indictment? Upon this point. See 1 Chitty Crim. L., 220; 3 Bac. Abr., 563; 2 Burns' Just., 660.

HEARD, on the same side: The objections urged to the indictment are, first-- that the indictment does not show that the grand jurors were sworn in Pike county. Second.--That the indictment does not pursue the words of the statute defining the offense. Third.--That the indictment does not aver the goods sold, were subject to duty. Fourth.--That two were jointly indicted; whereas, there should have been several indictments.

And first, that the indictment does not show that the jurors were sworn in Pike county. To sustain this objection--3 Johnson's Cases, page 265, is referred to And that case turned on the authority of the cases reported in Vent. and Strange, there referred to; which were founded on indictments found at the Quarter Sessions; and those cases, and this doctrine, arose only in indictments found at the Quarter Sessions. As it regards the power and duty of the court of Quarter Sessions--Oyer and Terminer, and Sessions of the Peace, & c., see Circuit Crown Companion, pages 1, 13, 17 and 27. By this authority it seems necessary, that an indictment found at those Sessions, must have a caption, stating the fact of their appointment and the powers conferred by it; and in the caption, also, it is stated, that the jurors were then and there sworn. See 1 Chitty's Criminal Law, pages 113 and 114, top. It will be seen by these authorities, that those courts tried no cause save petty larceny and misdemeanors; and all other indictments found in their courts are sent to the assizes. Hence it is, that greater certainty is required in the caption of an indictment and the suggestion made by Chief Justice Kent in the decisions referred to in 3 Johnson, at once shows, that the doctrine is confined to indictments found at the Quarter Sessions. For he says, that in the case of the King v. Larneth (1 Mod.), which was an indictment found at the Quarter Sessions, the words then and there charged and sworn were omitted; and the whole court of K. B. held the omission fatal, and quashed the indictment. The clerk of the Crown office, that is of the Session courts, informed the court that this was always the course to be taken, and that the above words were necessary where the caption is recited.

The second objection is, that the word and is used in the indictment, and the word by is used in the statute. I grant, sir, that it is necessary to use the words used in the statute defining the offense, but this not being one of them, and being used merely to connect two sentences, it is not material. See 3 Bacon, page 570.

The third objection is, that the indictment does not aver that the goods sold were subject to duty. As to this point, see 1 Chitty, page 233, top page, note( a); and authorities there referred to; 3 Bac. Ab., 570-1.

The fourth point contended for, is, that two were jointly indicted. Several may be indicted for a misdemeanor. See 1 Chitty's Criminal Law, 220 and 1; 4 Bl. Com., 36; 7 East, 65; 1 Hale, 615, 521-2.

U. WRIGHT, contra.

1st. That a bill of exceptions ought to be granted in all cases of a mere misdemeanor; and especially in cases for the collection of the revenue. 2 In., p. 527; 1 Bac. Ab. p. 528; 4 Haw. P. C., 457, § 210; Mo. L., p. 320, § 28; also, p. 631, § 39; 3 Mo. R. p. 283; 1 Chitty, C. L. p. 508; Phillips Ev., p. 214; 1 Starkie's Ev., p. 430; 4 Blacks. Com., p. 5 and note 1; Mo. L., p. 491, as to common law; also, p. 164, § 12, as to the auction.

2nd. If the bill of exceptions be allowed, we contend that the court ought to have granted a new trial, on the grounds, that he gave wrong instructions to the jury, and refused to give those that were right. That the evidence in the bill shows, that the sale of the goods was authorized by the statute. That the sale by auction is an individual act, and not joint act. That there was no evidence against George Vaughn, except as he was a partner in merchandise with William, and that William sold some, Hughes sold some, and Trimble sold some; and each was liable for his own act, and not for the other. The verdict being joint, and the fine assessed joint--it ought to have been set aside and a new trial granted. Mo. L., p. 320, § 28; 1 Chitty Crim. L., top page, 533; 2 Tidd, p. 813, 82I.

3rd. That the indictment is wholly insufficient. It does not bring the defendants within the provisions of the statute. The selling by auction without license is an individual act; and those offending against it, are liable separately and not jointly, any more than for a perjury, and in other respects is too uncertain. Mo. L., p. 160, § 2, 1 and 5; 1 Chitty C. L., 539 to 41; 2 Tidd. 826; 2 Mo. R., 228; 3 Mo. R., 63; 1 Chitty C. L., top page 220 and 221. It does not appear that the jury were sworn in the county of Pike. See 3 Johnson's Cases. p. 265.

CHAMBERS, in reply. I contend that this is but a proviso, which is made for the defendant's benefit, and that the prosecutor was not bound to negative i, nor to prove it. For the provisos of a statute, are not to be negatived by the prosecutor. See 1 Chitty 233. The averment would be an affirmative averment, and, therefore, the prosecutor bound to prove it true.

U. WRIGHT, in reply. 1st. 3 Johns. Cases 267, proves the indictment bad for want of oath to jurors. 2nd. Indictment bad under the statute.

1st. Because it does not pursue the language of the statute: See Starkie's Criminal Treatise, p. 253-252-251, overruling the dictum of Justice Foster; 1 C. C. Law, top page, 235. The exceptions to the rule are not law, being founded on Foster's dictum, and being not countenanced by later decisions; and for this, also 1 C. C. Law, page 237, top. It has been said that where the statute is recited, the language of the statute may be omitted. This is not law; see Starkie's Crim. Treatise, page 247 and 248; also 1 C. C. Law, page 237, top.

2nd. It does not mention all the circumstances contained in the statutable definition of the offense. See Starkie's Crim. Treat. p. 242: 1 C. C. Law, page 231-232.

3rd. The defendants are indicted as for a joint offense, and the judgment is joint, whereas each is responsible for himself. See 1 Starkie's Crim. Treatise, p. 39; 1 C. C. Law, page 220, 221, top. The cases cited of joint indictments are all cases in which the parties were charged seperaliter; See 1 Starkie's Crim. Treat. pages 47 and 48.

4th. The indictment is too loose; see Starkie's Crim. Treat. p. 267. It must contain a direct, positive, single and definite charge. This indictment charges: 1st. That the defendants exercised the trade and business of an auctioneer, which is too general, for it may be done in two ways. 2nd. It charges him with selling unlawfully, as such auctioneer, goods, wares, merchandise, &c., without a license. This is a separate charge, though intended for a specification of a more general charge. But it is itself defective as a charge, because it omits to allege that they exercised the trade and business of an auctioneer, which is the offense under the statute, though that offense may be committed in two ways.

TOMPKINS, J.

Wm. L. and George Vaughn were indicted for selling goods at auction without a...