State v. Johnson

93 Mo. 317 | Mo. | 1887

Sherwood, J.

The indictment, omitting the formal parts,is as follows: “That heretofore, to-wit: On the twenty-third day of February, 1883, at the county aforesaid, J. B. Johnson, Robert Jennings, John Williams, David Taylor, Perry Martin, and Lloyd Anderson were each, and all of them, convicts, and, as such, lawfully imprisoned in the penitentiary of the state of Missouri, there and then situate, according to the statute in such cases made and provided, for a term less than life, and that the said J. R. Johnson, Robert Jennings, John Williams, David Taylor, Perry Martin, and Lloyd Anderson, and each of them, did, then and there, feloniously, wilfully, and maliciously jointly attempt, by force and violence to certain persons, to-wit: W. B. Vanhorn, Walton Platt, and R. S. Tarleton, the said W. B. Vanhorn, Walton Platt, and R. S. Tarleton being then and there the lawful guards and keepers of the aforesaid convicts, to effect their escape from such imprisonment, against,” etc.

The statute upon which it is drawn reads as follows:

“ Section 1456. Attempt to escape from penitentiary by force. — Every person lawfully imprisoned in the penitentiary, or held in custody going to the penitentiary, under sentence of imprisonment for a term less than life, who shall attempt, by force or violence to any person, to effect his escape from such imprisonment or custody, whether such escape be effected or not, shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years, to commence at the expiration of the original term of imprisonment.”

After conviction, upon a plea of guilty, the defendant moved in arrest, and his motion questions the sufficiency of the indictment.

I. As a general rule, it suffices, if an indictment, based upon a statute, employs the phraseology of the statute in charging the offence. Section 1445, a cognate section to the one being discussed, makes it a felony to furnish prisoners with implements to escape. In State r. Adcoclc, 65 Mo. 590, it was ruled to be unnecessary to set out the particular felony with which the prisoner was charged, whose escape was sought to be facilitated, and the indictment was held good. For a like reason,- a like rule should prevail in the case at bar. Similar rulings have been made elsewhere. State v. Murray, 15 Me. 100; Gunyon v. State, 68 Ind. 79; Clemons v. State, 4 Lea (Tenn.) 23.

II. It is insisted that the indictment is also bad because initials are substituted for the Christian, or baptismal, name of the defendant, and no excuse given for failure in this particular. Whatever may have been the rule at common law, the objection should not prevail under the broad provisions of section 1821, Revised Statutes, 1879. And apart from those provisions, the objection is of no force in the circumstances of the case presented by this record. The defendant, by pleading guilty to the charge, of necessity, admitted the correctness of the initials, and of the surname. If incorrectly thus designated, he could have pleaded in abatement, but, after verdict, or plea of guilty, its legal equivalent, it is too late to raise the point. Again, the doctrine is fast gaining ground that such a method of designating a defendant in a criminal case, where he is accustomed to be designated, and the use of his initials and surname plainly indicates who is meant, that such initials are adequate in an indictment. 1 Bishop Crim. Proc., sec. 685, and cases cited.

These views result in an affirmance of the judgment.

All concur.