21 Mo. 265 | Mo. | 1855
delivered the opinion of the court.
The indictment is substantially the same as that against Kennon. The court sustained the first motion of the defendant, made to quash the indictment, so far as to quash the second, third and fourth counts in the indictment, and overruled the said motion as to the first count. The court afterwards sustained a second motion to quash the first count; so the indictment is entirely quashed.
This court has repeatedly said that the courts below were not bound to quash indictments ex debito justitiee, and that the practice had better be abandoned; yet, we will not reverse because the court has quashed a bad indictment, or a bad count in an indictment. We see, really, no serious objection to getting clear of a bad count by quashing it. One good count will support a general verdict of guilty. We have also said that we will not interfere in the discretion of the courts below, in regard to compelling or refusing to compel the circuit attorneys to elect on which counts they will proceed to try the accused.
We are aware of the old practice, and the old cases mentioned in the books, that an indictment is an entire thing, and that to quash or strike out one count, destroys the whole ; but the practice has never prevailed in this state. We make these general remarks, in order that the counsel may see, that, although
This case will be remanded, and the question as to a raffle being in the meaning of our lottery act, is left open for the decision of the Criminal Court, as the facts may turn out in proof. The other judges concur.
