7 Mo. 177 | Mo. | 1841
Opinion of the Court by
Joseph Shoemaker was indicted by the grand jury of
Upon this indictment the defendant was tried and the jury found him guilty “ in mannei^nd form as charged in the indictment, and assessed his punishment to imprisonment in the Penitentiary for seven years.” The defendant to arrest the judgment because of defects in the indictment, which motion was sustained by the court, and the court, upon the evidence given, ordered the defendant into the custody of the sheriff to await the further prosecution of the offence. The circuit attorney excepted to the opinion J 1 1 the court in staying the judgment, and brought the record to this court by writ of error.
The defendant in error relies upon two grounds to maintain the opinion of the circuit court in arresting the judgment ; material defects in the indictment, and a defective verdict.. I will first examine the oojections to the verdict,
The 14th section of the 9th article of the act concerning crimes and punishments, provides, that upon an indictment
The proper construction of these sections, was incidentally noticed by this court in the case of Watson (5 Mo. R. p. 497 ; ) in the case of Mallison, (6 Mo.R. p. 399;) and in Plummer’s case, (6 Mo. Rep. 240.) It was held by the court in those cases, though the point was only collaterally before them, that the fourteenth section could not have been intended to dispense with the rules of the common law, and I may add, of common justice, that the allegation and proofs must correspond. If the inferior degree of offence, of which the party is convicted, be included in the allegations of the indictment, a conviction of such inferior degree is consistent with established principles. But if the other of-fence be of a totally dissimilar nature, and no count in the indictment contains any description of the inferior offence proved, no judgment could be given against the defendant upon such proof. -If, for example, the indictment charges a forgery in the second degree, which our statute declares to consist in counterfeiting coin, or in passing or attempting to pass such coin, the defendant cannot be legally convicted of forgery in the third degree, which consists in making false entries in books with fraudulent intent, &o.
In this case the jury found the defendant guilty in manner and form as charged in the indictment. The indictment charged the crime of forgery in the second degree. An examination- of the other .degrees of that offence, specified.in the statute, inferior to the second degree, makes it apparent that the defendant could not, under this indictment, have been found guilty' of any inferior degree of forgery ; it
1 I Two objections have been taken to this indictment. It is first objected, that the money charged to have been counter feited, was in imitation and similitude of a “ piece of good legal and current money and silver coin of the State of Missouri.” The objection is technical; but it has not the less force on this account, in a criminal case, where , , , , . ,. . _ , . COUrtS are bound to see even the technicalities of the law complied with. It is plain that the words “ of the State of Missouri,” cannot be rejected as surplusage, they being a description of a material part of the offence. The sion is contradictory and repugnant to the subsequent part J ao i i or the description, where the prosecutor describes the coin as a Mexican dollar, current within this State by law and usage. If those contradictory and repugnant expressions did not enter into the substance of the offence, they might be rejected as surplusage. 1 Chitty Cr. Law, 238. Or the prosecutor, alter describing the coin counterfeited, as a Mexican dollar, current within this State, had pursued his description by representing the same as a silver coin of State of Missouri, the latter expression might have been rejected as inconsistent with, and repugnant to the former averment; but where the objectionable words are not con-contradicted by any thing which goes before, but are really irreconcileable with some subsequent allegation, they cannot be thus rendered neutral. 1 Chitty Cr. Law, 238.
If the expression “current coin of this State,” was even ambiguous, and capable of two meanings, this court is bound to take that meaning which would support the indictment, and not that which would defeat it; but a court is not at liberty arbitrarily -to give a meaning to words inconsistent with the habits and understanding of mankind.
As the defendant in error is held to bail under another indictment for the same offence, it is proper that an opinion should be> expressed on the second objection stated in the motion in arrest. It is urged, that the words “ at the time current within this State by law and usage,”' are not laid with a venue, but refer to the time when the counterfeit coin was made, and not to the time when it was passed as true, or attempted to be passed as true. The seventh section of the 4th article, declares every person guilty of forgery in the second degree, who counterfeits any gold or silver coin, at the time current within the State, by law or usage. By this it is clearly to be understood that' the genuine coin must be current in this State, at the time the counterfeit is made. The 21st section then declares every person guilty of the same offence, who passes as true, or attempts to pass as true, any counterfeit of any gold or siiver coin, the counterfeiting of which is declared forgery in the 7th section. The time when the genuine coin must be in circulation, is then referred to the time when the counterfeit coin is made, and not to the time when it is passed, or attempted to be passed. If the genuine coin should, after the counterfeit coin has been made, go out of circulation, the attempt to pass the counterfeit would still be an offence under the 21st section. The indictment is good, therefore, in this respect; the time mentioned referring to the time when the counterfeit coin was mads and not when if was passed-
Judgment affirmed.