14 Mo. 417 | Mo. | 1851
delivered the opinion of the court.
The defendant below, appellant here, was indicted, by the grand jury in St. Louis county, for stabbing one Henry Long, on purpose and of his malice aforethought with intent to kill. The indictment contains three counts, and is drawn under the 34,37 and 38 sections of the 2nd article of the act concerning crimes and punishments. This indictment was returned into court on the 14 January, 1850; on the 19th
This motion was sustained by the court, the plea was stricken out, and the jury which had been in part made up, was then completed, and the case was tried upon the plea of not guilty. The jury convicted, the defendant, finding him guilty under the 3rd count in the indictment and assessed his punishment to three years imprisonment in the State-Penitentiary. The defendant excepted to the action of the court sustaining the motion of the circuit attorney to strike out the plea of misnomer.
The criminal court commuted the punishment assessed by the jury as to “time” by changing it from “three years” to “two years.”
The defendant moved the court for a new trial, which motion was overruled.
We will not notice this motion, as the defendant has not thought prudent to preserve, by the bill of exceptions, the testimony given to the jury on the trial or any part of it, or any instructions given by the court, or refused.
The defendant then moved in arrest of judgment, assigning as reasons therefor: 1st. The insufficiency of the indictment. 2nd. Because the court erred in striking out plea in abatement plead by the defendant. 3rd. Because all the proceedings in this case are irregular and defective, so that no legal judgment can be rendered against him. This motion was likewise overruled by the court. The defendant excepted, and prayed an appeal to this cpprt, which was granted and all the proceedings to execute the sentence stayed until the judgment of this court is had upon the case. The main point relied upon by the appellant’s counsel, for a reversal of the judgment below, is the action of the court in sustaining the motion to strike out the defendant’s plea of misnomer. Indeed, in his brief, he does not call our attention to the indictment. We have looked, however, into the indictment, as its insufficiency and defectiveness were assigned as reasons in arrest of the judgment. We think the indictment substantially good, and thatthere is
There is nothing wrong in the action of the court in striking out the plea of misnomer. The defendant should have relied on his plea in abatement at first, by then pleading it, instead of pleading not guilty; or if he wished to test the validity of his plea, after having pleaded not guilty, he should have moved the court for leave to withdraw the plea oí not guilty and for permission to file his plea in abatement. This he failed to do, and he has no reason to complain, that the court unceremoniously cut out his plea thus improperly filed. This view of the case, renders it unnecessary for us to notice the plea offered in this case with regard to its merits. We will barely refer to the case of Welker-son vs. the State, lately decided by this court at Jefferson city, and the authorities therein referred to.
Upon the whole, we find nothing in this case requiring the interference of this court. The judgment of the criminal court is therefore affirmed.
