19 Mo. 674 | Mo. | 1854
delivered the opinion of the court.
In this case, there are several minor questions which I will dispose of, before I mention the only one of any importance. In the first place, the persons whom the defendant introduced and wished to have examined as witnesses for him, were properly-excluded by the court. They were parties to the indictment— co-indictees, and as such were not competent witnesses for their fellow-defendant. The defendant’s counsel offered to prove, by parol evidence, that one of these persons had heen convicted, and to the prosecution against the other a nolle prosequi had been entered, and contends, in this court, that the court below ought to have admitted these persons as witnesses, because the fact of the conviction of the one, and a nolle prosequi as to the other, were known to the court before which this trial was going on; the judge thereof having been the same judge before whom, as a court in another county, these proceed
As to the objections taken to the instructions given for the State, they are untenable. All the defendant’s instructions were given, and nothing now remains to be considered except the motion in arrest, on account of the indictment. The main question, therefore, in the case, arises upon the sufficiency of the indictment. This indictment is as follows :
“ State of Missouri, county of St. Franqois. In the Circuit Court, November term, A. D. 1852. The grand jurors of the state of Missouri, empanneled, sworn and charged to inquire within and for the body of the county of St. Franqois aforesaid, upon their oath presort, that Jesse Edwards, John B. Olardy, William Edwards, Jackson Edwards, John Freeman and William Nelham, all late of the county of Ste. Genevieve, heretofore, to-wit, on the third day of November, in the year of our Lord one thousand eight hundred and fifty-two, with force and arms, at and in the county of St. Franqois aforesaid, did unlawfully, riotously and routously assemble and gather together, 'to the number of three or more persons, with intent then and there, with force and violence, in a violent and turbulent manner, to do an unlawful act, that is to say, with force and violence, unlawfully and in a violent and turbulent manner, to assault, beat and maltreat one Stephen L. Page, and being so assembled and gathered together, unlawfully, riotously and routously, with intent then and there, with force and violence, in a turbulent and violent manner, assault, beat and maltreat one Stephen L. Page, in the peace, then and there being, and other wrongs to the said Stephen L. Page, then and there unlawfully, with force and violence, and in a violent and turbulent manner, did, to the great terror and disturbance of all the good people of St. Franqois county aforesaid, then and there being, in contempt of all law, to the, evil example of all persons in like cases pending, contrary to the form of the statute, in such case made and provided, against the peace and dignity of the state of Missouri.”
The omission in this indictment consists of the neglect to insert the word “ did” before the words “ assault, beat and maltreat one Stephen L. Page, in the peace then and there being, and other wrongs,55 &c., so as to make the sentence read thus : ‘i With force and violence, in a turbulent and violent manner, “ did55 assault, beat and maltreat,55 &c. We are inclined to think that this word'“ did55 may, in this indictment, be supplied by intendment.
In indictments for misdemeanors merely, such intendment is often resorted to. The strictness and rigor in the construction of indictments for felonies, are not applied uniformly to indictments for mere misdemeanors. In the case of the State v. Halder, 2 McCord, 377, the omission to insert the word “did55 before the words “ feloniously utter and publish, dispose and pass55 was held fatal, and the judgment was arrested. This indictment was for a felony.
In the case of the State v. Whitney, 15 Ver. 298, which was an indictment for a misdemeanor, selling liquor by the small measure, without license, the word “did” was omitted, which should have been joined with the words “sell and dispose of.” This omission was held not to be fatal on motion in arrest of judgment. Bennett, J., in delivering the opinion of the court, said : “In this indictment, it is alleged that the respondent, on the first day of August, A. D. 1842, at, &c., sell and dispose of, &c. It is evident the omission is purely a clerical one ; the auxiliary verb may be supplied by intendment.”
Upon the whole, it is the opinion of this court, that the judgment below be affirmed; and, the other judges concurring, it is affirmed accordingly.