State v. Kinney

81 Mo. 101 | Mo. | 1883

Martin, C.

The defendant was indicted at the May term, 1881, of the circuit court of Greene county, for selling fermented and distilled liquors on Sunday, the indictment being based upon section 1581, Revised Statutes 1879. He moved to quash the indictment on the ground that it was not signed by the prosecuting attorney. The court overruled the motion. The defendant was arraigned and a plea of not guilty entered. Upon the trial he was convicted and fined $27 7-12, from which he has appealed. It is urged that the court erred in refusing to quash the indictment, and the defendant moved to set aside the judgment for error in this respect.

The indictment was signed “ S. H. Boyd, circuit attorney.” The motion to quash, averred that it was not signed by the prosecuting attorney of Green county.

Certainly, to render the indictment valid, it must in fact be signed by the prosecuting attorney of the county. Revised Statutes 1879, section 1798. The court, after hearing the motion, overruled it, and in the absence of proof to the contrary, it must be presumed that it was signed by the proper officer. The court is bound to take notice of its own officers, and will notice their signatures, whether their official designations are addded or omitted. The record in

tliis case, recites that S. H. Boyd was the prosecuting attorney of Greene county, at the empannelment of the grand jury, which found the indictment. Therefore, the indictment being signed by the proper officer, the law was substantially complied with. The mistake of using the word “circuit” instead of “prosecuting,” for the purpose of designating his office of attorney for the county, is under the circumstances of the case, an immaterial one. It was not a defect or imperfection tending, in any way, to prejudice the substantial rights of the defendant upon the merits of his case. R. S. 1879, § 1821; I Bishop Grim. Proc., (3 Ed.) § 698; State v. Salge, 2 Nev. 321; Hipes v. State, 73 Ind. 39.

I have examined the evidence and instructions, and although the evidence is conflicting as to the act of sale, the jury were the judges of its weight, and of the credibility to be given to the witnesses respectively, and I see no ground for a reversal of their finding. The instructions given at the instance of the State, and on the motion of the court itself, placed the case fairly before the jury, and the judgment should be affirmed.

It is so ordered.

All concur.