State v. Randolph

139 Mo. App. 314 | Mo. Ct. App. | 1909

COX, J. —

Indictment returned by grand jury, McDonald County, August term, 1907, charging the defendant with selling liquor in violation of the Local Option Law. Plea in abatement filed by defendant, evidence heard thereon and plea overruled. Plea of not guilty entered, jury Avaived, trial by court, defendant convicted, and punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for a term of six months. Motion for a new trial and in arrest of judgment filed and overruled. Judgment entered against defendant from which he has appealed.

The objections are: First, the court erred in overruling defendant’s plea in abatement. His plea is not copied in appellant’s abstract of record or in the transcript of the record, but we infer from the testimony offered in support of it that it charges that the indictment was returned without the hearing of any evidence as to whether or not the Local Option Law had been adopted in McDonald county. On this hearing it was conceded that neither the county clerk nor any of the records of his office were produced before the grand jury during their investigation. The prosecuting attorney testified that he advised the grand jury that the Local Option Law had been ádopted and was in force in that county, and that there was no sworn testimony offered in relation to that fact. The rule is that an indictment returned without the hearing of any testimony, may be quashed on plea in abatement. It does not follow, however, that the grand jury, are required to hear testimony upon every point which the State would be required to prove upon the trial in order to make out a case. While an indictment cannot be returned without the hearing of some testimony, the grand jury are themselves the judge of how much testimony is required, and also as to whether the testimony which they hear is competent.

The evidence offered on this plea in abatement only shows that no evidence was offered as to one question— that of the adoption of the Local Option Law in that county. The indictment having been returned in the regular way, the only way it could be abated would be by proof that there was no evidence offered before them at all. This the defendant failed to do and this point must be ruled against him. [State v. Faulkner, 185 Mo. 673, l. c. 696-7.]

It is contended by appellant that the evidence in this case is insufficient to sustain the verdict, for the reason that it does not show the time of the alleged sale. While the prosecuting attorney had some difficulty in getting witness to locate the time, as is often the case in the trial of cases of this character, the witness.did finally say that the purchase was made in the spring or summer of 1907. The indictment having been returned at the August term, 1907, it is apparent that the sale was made within a year prior to the time of the finding of the indictment and that point must be ruled against the appellant.

It is nest contended that the record does not show that the grand jury was organized, empaneled or sworn. From what we can gather from the record before us and the transcript filed in this court, that question was not raised in the plea in abatement and it cannot be raised after verdict. [State v. Pate, 67 Mo. 488; State v. Smallwood, 68 Mo. 192; State v. Clifton, 73 Mo. 430; State v. Mann, 83 Mo. 580; State v. Griffin, 87 Mo. 608.]

It is further contended that the record does not show that the defendant was present at the rendition of the judgment. This contention seems to be well taken for the entry of the judgment in the record contains no reference to the presence of the defendant. The record does show that defendant was present during the progress of the trial, and the overruling of his motion for a new trial and in arrest of judgment, which motions were passed upon by the court upon the same day that the judgment was rendered; but it will be observed that section 2610 of the Statutes of 1899, which provides that on an appeal in a criminal case when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial, only applies to the trial proper and does not apply to the rendition of the judgment. That matter is governed by section 2656, which provides that for the purpose of judgment, if the conviction be for an offense punishable by imprisonment, or imprisonment be assessed as punishment by the jury, the defendant must be personally present. It has been held by the Supreme Court in this State, in case of State v. McClain, 137 Mo. 307, l. c. 316-317, that the statute requiring defendant to be present at the rendition of judgment of imprisonment is mandatory and that the record must show that fact.

Punishment assessed in this case having been, in part, imprisonment in the county jail, the record must show the defendant present when this judgment is rendered. It does not follow, however, that the defendant is to be discharged, or the county put to the expense of another trial. This record discloses no error in the trial of the case, and the canse will, therefore, be remanded with directions to the circuit court to enter judgment in accordance with the finding of the court, sitting as a jury, having the defendant present in court at the time the judgment is rendered.

All concur.