57 Mo. 205 | Mo. | 1874
delivered tbe opinion of tbe court.
Tbe defendant was indicted in tbe Franklin Circuit Court for forgery in the 3rd degree.
At the November term of tbe Franklin Circuit Court, tbe defendant appeared and filed a motion to quash tbe indictment for reasons therein stated. This motion was beard by tbe court and sustained, and final judgment rendered in the cause against tbe State. Tbe plaintiff excepted to tbe ruling and judgment of tbe court, and lias appealed to this court.
Tbe only question presented for the consideration of this court is as to tbe sufficiency of tbe indictment. • Tbe indictment contains two counts, and is in tbe following form, to-wit:
i: Tbe grand jurors of tbe State of Missouri, now here in court duly impaneled, sworn and charged to inquire within and for tbe body of Franklin County, on tlieir oaths present, that Amos W. Maupin, late of tbe county and State aforesaid, on tbe first day of February, in tbe year of our Lord, one thousand, eight hundred and sixty-nine, at tbe county and State aforesaid, djd, unlawfully and feloniously, falsely make, forge and cause and procure to be forged and counterfeited, a certain instrument of writing purporting to be tbe certificate of D. Q. Grale, judge of the Ninth Judicial Circuit of tbe State of Missouri, and of N. G-. Clark, Circuit Attorney of tbe said Ninth Judicial Circuit of tbe State of Missouri to a certain fee bill.purporting to be tbe fee bill allowed against the State of Missouri, in the ease of tbe State of Missouri against Greenbury Mitchell, which said certificate is in tbe words and figures following, to-wit:
We, tbe undersigned, Judge and Circuit Attorney, certify, that we have strictly examined the foregoing bill of costs during tbe sitting of the Circuit Court; that tbe defendant was tried and acquitted; that tbe offense was one, punishable solely by imprisonment in tbe State penitentiary ; that tbe services were rendered for which tbe charges were made, and that tbe compensation claimed therefor is given by law as therein charged, and that tbe State is liable to pay tbe same, being tbe sum of one hundred and ninety-three dollars and fifty cents.
D. Q. Gale, Judge,
N. G. ClaRK, Circuit Attorney,
with intent, then and there, unlawfully and feloniously to injure and defraud the State of Missouri, contrary to the form of the statute in such case made and provided, against the peace and dignity of the State.”
“And the jurors aforesaid, on their oaths aforesaid, do further present, that the said Amos W. Maupin, at the county and State aforesaid, oil the first day of February, in the year of our Lord, one thousand, eight hundred and sixty-nine, did unlawfully and feloniously falsely make, forge and counterfeit a certain instrument of writing purporting to be the certificate of D. Q. Gale, Judge, and N. G. Clark, Circuit Attorney of the Ninth Judicial Circuit of the State of Missouri, to a certain fee bill purporting to have been allowed against the State of Missouri, in the case of the State of Missouri against Greenbury Mitchell, with intent then and there unlawfully and feloniously to injure and defraud the State of Missouri contrary, etc.”
Tire objections to this indictment raised by the motion to quash and which are insisted on in this court are : 1st — That it is first charged in the indictment that defendant wrongfully and feloniously did make and forge the certificate of the judge and circuit attorney, and in the same count it is charged that he procured said instrument to be forged and counterfeited, and that, therefore, the indictment is double, charging two offenses in the same count; 2nd — It is nowhere charged or affirmatively averred in the indictment, that Gale was Judge of the Ninth Judicial Circuit, or that Clark was Circuit Attorney thereof; 3rd — The indictment charges that a certificate was forged to a fee bill purporting to have been allowed against the State of Missouri, in the case of the State of Missouri against Greenbury Mitchel, etc.; but the indictment fails to state where the case of the State vs. Mitchell was pending, or where, or in what circuit or county the costs or the fee bill accrued or originated.
As to the first objection to the indictment aboAm set forth, it is extremely technical, and we think that although the aver-ments are rather iuartificially stated, the indictment should' not be held bad for that reason. The words “ caused and procured to be” might be rejected as surplusage,'and at least the AA'hole indictment could not be quashed for that objection alone, as the objection does not apply to the second count of the indictment, Avhere no such double charge appears.
"We think that the averments in the indictment as to the fact that Grale was Judge and Claris, was Circuit attorney of the Ninth Judicial Circuit, are, under our present liberal practice, sufficient.
' The third objection is of a more serious nature. It is not shown in either count of the indictment, in what county .or circuit the case of the State vs. Mitchell was pending, or where the costs or fee bill accrued, to which the certificate Avas charged to have been forged. It was necessary that the indictment should have shown Avhere said prosecution was pending and the fee bill accrued, so that it would appear that it was in the proper Circuit where the Judge and Circuit Attorney named might have the power to officially certify the same, and so as to notify the defendant of the particular fee bill and the court in which it originated, to which he was charged of forging the certificate.
We think the indictment is fatally defective in this particular, and the judgment must therefore be affirmed.