Barada v. State

13 Mo. 94 | Mo. | 1850

RYLAND, J.

This was an indictment against the defendants, Edmund Barada, Isidore Barada and Alexander Constant, for keeping a gaming-house, &e., found by the grand jury in Buchanan county, at the March term, 1848, of the Circuit Court for said county. The defendants were arrested, and at the March'term, 1849, were tried upon the indictment, to which they had plead not guilty. The jury found the defendants, Edmund and Isidore Barada, guilty, and the defendant, Constant, not guilty. The jury assessed the fine of fifty dollars against the two Baradas. They afterwards moved for a new trial and in arrest of judgment. The motions were overruled, and the defendants, Baradas, then bring the case to this court. There were no exceptions ■ taken to any evidence given, nor any instructions given. The principal cause of objection is in the verdict of the jury, and the judgment of the court. The defendants contend, that the verdict and judgment should have been several; that is, finding each one of these two defendants guilty, and assessing a fine separately against each one; and judgment should have been rendered against each one for a separate fine.

The matter of the judgment being joint against both defendants, is the only one which demands our attention. The case of The State of Missouri v. John H. Gay and others, is relied on and cited by the attorney-general, as well as the counsel for the defendants, Baradas. This case was an indictment against Gay and others, for keeping a ferry without license. The indictment was said to be a good form, but it was demurred to because the offense was charged to have been committed jointly by Gay and the others. The court below sustained the demurrer, and this court reversed the judgment, sustainingthe demurrer, alleging that if the offense consist of any joint act, which is criwi-nal in itself, -without regard to any particular personal default in the defendant, such as the joint keeping of a gaming-house, &c., in such cases the indictment may either charge the defendants jointly and severally, or may charge them jointly only. This court then, after deciding the question before it, goes on to say, that “when several are joined in One indictment, a joint award of the fine against them is erroneous and it is upon this latter clause of the opinion in the above cáse of The State v. Gay et al. that the defendants rely for a reversal.

Without giving any sanction to the doctrine in the latter clause of that opinion (as I consider that question was not before the court), I will merely, for ■ the benefit Of the defendants in this prosecution, state, that the judgment in this case is for the minimum punishment; the fine being not less than fifty dollars, nor more than five hundred dollars. The judgment that these defendants then pay fifty dollars as the fine, instead of each one to pay that sum, cannot be said to be to the injury of them or to their prejudice. The error of the court below, if there be any, was clearly in their favor, and it is with such ill grace that they complain of it here, that this court is disposed to pay little attention thereto.(^a) Let the judgment, therefore, be affirmed.

a (a) See Vaughn et al. v. State, 4 Mo. R. 535, and note b.