72 Mo. 102 | Mo. | 1880
The petitioner in this case is confined in the jail of Audrain county by virtue of a warrant issued from the circuit court of Scotland county upon an indictment found by the grand jury of Scotland county, charging petitioner with having committed the crime of murder in the county of Clark. The principal and controlling question presented - for our consideration by the return made to the writ of habeas corpus issued in the case is, whether the grand jury of Scotland county had the power or jurisdiction under the constitution and laws of this State to prefer an indictment charging defendant with committing the crime of murder in Clark county. Section 12, article 2 of the constitution of 1875, provides “ that no person’ shall, for a felony, be proceeded against criminally otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.” Section 22 of the same article provides that “ in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy, public trial by an impartial jury of the county.” These constitutional provisions secure to the citizen charged with a felony, first, the right to have the charge preferred by indictment before he can be tried, and,
The word “ indictment,” as used in section 12, supra, has a well defined meaning, and must be accepted and understood as having been inserted in the constitution with the meaning attached to it at common law. It is thus defined : “An indictment is an accusation at the suit of the king, (or state,) by the oaths of twelve men, (at the least, and not more than twenty-three^) of the same county wherein the offense was committed, returned to inquire of all offenses in general in the county, determinable by the court in which they are returned, and finding a bill brought before them to be true.” 5 Bacon Abridgment, p. 48. The common law definition has been modified in this State by section 28, article 2, of the constitution, which declares that hereafter a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment. The above definition of the term indictment is fully warranted by the following authorities : “ Every indictment is to be found by twelve lawful, liege freemen of the county where the crime was committed, returned by the proper officer.” 5 Bacon Abridgment, p. 52. “ The grand jury are sworn ad inquirendum pro corf ore comitatus, and, therefore, by the common law cannot regularly indict or present any offense which does not arise within the county or precinct for which they are returned, and, therefore, it is a good exception to an indictment that it doth not appear that the offense arose within such county or precinct. An indictment alleging the offense to have been committed in another district than the one in which the bill was found, is insufficient and invalid.” 5 Bacon Abridgment, p. 61. “ It seems to be generally agreed at this day that by the common law no grand jury can indict any offense whatsoever which doth not arise within the limits of the precincts for which they are returned. And upon this ground it has been resolved to be a fatal exception to an indictment that it doth not appear by it that the offense arose within the
Reading section 12, article 2, of the constitution, in the light of the well understood meaning of the word indictment at common law as modified by section 28, article 2, of the bill of rights, audit would read thus : “No person shall, for a felony, be proceeded against criminally otherwise than by an indictment, that is, otherwise than by an accusation at the suit of the State, by the oath of nine men (at least, and not more than twelve), in the same county wherein the offense was committed, returned to inquire of all offenses, in general, in the county determinable by the court in which they are returned, and finding a bill brought before them to be true.”
If this is the true reading of section 12, supra, (and we cannot perceive how it is susceptible of any other,) it guarantees to every person the right to be exempt from criminal prosecution for a felony except upon an accusation or indictment preferred by a grand jury of the county where the offense was committed, and as the indictment under which the petitioner is held shows upon its face that it was preferred by a grand jury of Scotland county, and charges the offense not to have been committed in said •county, but in Clark county, it necessarily follows that defendant cannot be held in custody under it unless section 1804 of the Revised Statutes is effectual for that purpose and authorizes such a proceeding, as the attorney genei’al contends it does. That section is as follows: “ Whenever
It may be observed, by way of enforcing the correctness of our conclusion, that this extraordinary statute, conferring upon a judge of the circuit court the dangerous
The class of authorities to which we have been’cited by counsel on behalf of the State, upholding statutes authorizing indictments, when goods are stolen in one county and carried by the thief into another county, to be found in any county into which they may be carried by the taker, in no way conflict with the views herein expressed. Such indictments are upheld on the ground that in such cases the larceny is continuous, and that the taking of the goods stolen in one county into another county involves a new caption in such county, and in all such cases the indict
onment is hereby ordered.