State v. Brooks

94 Mo. 121 | Mo. | 1887

Nobton, C. J.-

Defendant was tried in the circuit court of Taney county, and- convicted of an assault with intent to kill, and his punishment assessed at a fine of one hundred dollars, from which defendant appealed, after making an unsuccessful motion in arrest of judgment, in which it is alleged that the indictment is insufficient. So much of the indictment as is-objected to is as follows:

“ State of Missouri,

“County of Taney,

In t]le CirCTlit Coilrt of Taney Co” Ootober Term> 1883‘

“The grand jury, summoned from the body of Taney county, Missouri, duly empaneled,” etc. (The correctness of the body of the indictment is not questioned).

The specific objection insisted upon is, that it does not appear that the grand jury finding the indictment was a grand jury for the state of Missouri. While it would have been more formal if the indictment had read: “The grand jury for the state of Missouri, summoned from the body of the county of' Taney, duly empaneled,” etc., the omission to follow that form is not fatal, provided it sufficiently appears from the record that the indictment was preferred by a lawful grand jury in and to a court of competent jurisdiction, and this much does fully appear from the record in this case. State v. Freeman, 21 Mo. 482; State v. Daniels, 66 Mo. 205.

It appears that the indictment was signed by the prosecuting attorney, and that the name of the foreman, also signed, appears on the indictment, followed by tbe words, “foreman of tbe grand jury;” the words, “ a true bill,” are omitted. The sufficiency of tbe indictment is assailed on tbis ground. According to tbe ruling of tbis court in tbe cases of State v. Burgess, 24 Mo. 381, and State v. Harris, 73 Mo. 288, tbe objection comes too late, being made after verdict, and for tbe first time, in tbis court. In tbe cases above cited, it is held that tbe failure of tbe foreman of a grand jury to certify under bis band an indictment to be a true bill is no cause for arresting a judgment after trial and conviction, but that advantage of it should be taken on motion to quash.

Finding no error in tbe record justifying a reversal of tbe judgment, it is hereby affirmed.

All concur, except Ray, J., absent.