83 Mo. 359 | Mo. | 1884
Defendant was indicted at the November term, 1874, of the circuit court of Chariton county for felonious assault. The indictment is as follows :
“The grand jurors for the body of Chariton county duly summoned, empanelled and sworn upon their oaths present that on or about the 28th day of July, A. D. 1874, at the county of Chariton, one Pleasant W. Blakely, with force and arms in and upon the person of one Francis T. Mayhew, then and there being with a certain club, three feet long and one inch in diameter, which club was then and there a deadly weapon, did wilfully, maliciously and feloniously assault, strike, beat and wound with the in*361 tention Mm, the said Francis T. Mayhew, then and there to feloniously, wilfully, maliciously and unlawfully kill, against the peace and dignity of the state.”
On the trial of the cause defendant was convicted and fined $100, and after making an unsuccessful motion in arrest of judgment prosecutes an appeal to this court. The principal grounds of the motion are, that the indictment does not allege that the offence was committed in this state and that it does not purport to be found by a grand jury of Chariton county, Missouri. The motion was properly overruled for the reason that the grounds stated did not furnish any reason authorizing the judgment to be arrested. The failure to name the state in the margin of the indictment, did not vitiate it. While it is said in 1 Bish. Cr. Proc., sec. 383, that it is customary to write the name of the state in the margin in connection with the name of the county, it is also said “that the name of the state need not appear either in the margin or in any other part of the indictment.” This court in treating similar objections, in the case of State v. Daniels, 66 Mo. 192, reaffirmed the rule laid down in the case of State v. Freeman, 21 Mo. 482, where it was held “that the caption formed no part of the indictment, but it must appear on the face of the record while the cause is in the court where the indictment was found, and from the transcript of the record after its removal into this court, on appeal, or writ of error, not only that the indictment is sufficient in form and substance, but, also, that it was properly preferred by a lawful grand jury to a court having jurisdiction over the subject, and if all this does not appear, it is error of which the defendant may take advantage. But if it does appear it is sufficient although the commencement of the indictment be wholly omitted.”
All these thing are shown by the record before us ; it shows that the indictment was returned into the circuit court of Chariton county, on the 19th of November, 1877, by the “grand jury of the county and state aforesaid,”
