State v. Bench

68 Mo. 78 | Mo. | 1878

Norton, J.

— Defendant was indicted in the Livingston circuit court, at its September term, 1877, charged with grand larceny in feloniously taking, stealing and carrying away three pieces of pine lumber, of the value of $11.50, “then and there the property of another, to-wit: the property of Blue Mound township, Livingston county.” A demurrer was filed by the defendant to the indictment, which was sustained, and from this action of the court the State has appealed to this court. It is contended by defendant that the indictment is insufficient, because Blue Mound township, the alleged owner of the things charged to have been stolen, cannot, under the law, be. the owner of property, and because it does not allege that said township is in Livingston county, Mo.

In 1873, the General Assembly adopted a “ township organization” law, (Acts 1873, p. 97,) in which it is provided that it should be operative in any county when adopted by a majority of the qualified voters of such county at any general election. It is therein provided that in counties adopting the law, each township, as a body corporate, shall have power and capacity “ to make such contracts, purchase and hold property, and so much thereof as may be necessary to the exercise of its corporate or administrative powers.” "While we may not take judicial notice of the fact that Livingston county adopted this law, we will take notice that it had the right to do so, and as to whether it did or not is a question of fact to be investigated on the trial, as well as the question whether such property as is alleged to have been stolen, was necessary to the exercise of its corporate powers. The right of Blue Mound township under the act of 1873, supra, to hold property, was dependent upon two facts : one being the adoption by Livingston county of the township organization, as prescribed by the law, the other whether the property in question was necessary to the exercise of its coi’porate powers. Both of these being questions of fact, should have been determined on a trial of the cause, and not on demurrer. State v. Cunningham, 51 Mo 479.

The objection that the township (though charged to be in Livingston county, the venue of which was laid in a preceding part of the indictment) is not alleged to be in Livingston county, Missouri, is of a character so technical as to make its consideration unnecessary under Wag. Stat., see. 27, p. 1090.

Judgment reversed and cause remanded,

in which the other judges .concur.

Reversed.