State v. Fleetwood

16 Mo. 448

Opinion

RylaND, Judge,

delivered tbe opinion of tbe court.

Tbe defendant was indicted by tbe grand jury of Ozark county, at tbe October term, 1851, of the- Circuit Court for that county, for a violation of tbe forty-third section of article eighth of tbe criminal code. He appeared to tbe indictment and moved tbe court to quash tbe same, which motion is as follows:

Tbe defendant moves tbe court to quash tbe indictment in this cause, for tbe following reasons : First, because there is a misjoinder of offences ; second, there is a want of venue in each count of said indictment; third, tbe court will quash tbe first, second and fourth counts, because they are double, and venue is not definitively laid, and tbe third for want of venue.

Tbe court sustained tbe motion, and quashed tbe indictment. Tbe circuit attorney excepted to tbe decision of tbe court, and brings tbe case here by appeal.

The indictment is as follows.:

“ The grand jurors for the State of Missouri, empanneled, sworn and charged to enquire in and for the county of Ozark, in the State of Missouri, upon their oath present, that Isaac Fleetwood, jr., late of the county of Ozark, in the State of Missouri, on the nineteenth day of September, in the year of our Lord eighteen hundred and fifty-one, with force and arms, at Ozark county, aforesaid, then and there did run upon a public road, in common use, in the county of Ozark, and State of Missouri, a horse, so as to interrupt travelers, and did then and there run said horse at and against one Elvira Martin, then and there being, thereby greatly'hurting and interrupting the said Elvira Martin, then and there being, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

“ And the grand jurors aforesaid, upon their oath aforesaid, do further present that Isaac Fleetwood, jr., late of the county of Ozark, aforesaid, with force and arms, at Ozark county, in the State of Missouri, on the nineteenth day of September, in the year of our Lord eighteen hundred and fifty-one, did then and there run upon a public road and highway, in common use in this state, a horse, so as to interrupt travelers thereon, and put to fright horses and other animals by them rode and driven, contrary to the form of the statute in such case made and. provided, and against the peace and dignity of the state.

“ And the grand jurors aforesaid, empanneled, sworn and charged as aforesaid, upon their oath as aforesaid, do further present that Isaac Fleetwood, jr., late of Ozark county, in the State of Missouri, aforesaid, with force and arms, at the said county of Ozark, on the nineteenth day of September, in the year of our Lord eighteen hundred and fifty-one, did then and there run upon a public • highway, in common use in Ozark county, in the State of Missouri, a horse, so as to interrupt travelers thereon, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

“And the grand jurors aforesaid, empannelled, sworn and charged as aforesaid, upon their oath aforesaid, do further present, that Isaac Fleetwood, jr., late of Ozark county, in the State of Missouri, with force and arms, at Ozark county, aforesaid, on the nineteenth day of September, A. D. eighteen hundred and fifty-one, did then and there run upon a public road and highway, in common use in the county of Ozark and State of Missouri, a horse, so as to interrupt travelers thereon, by means of which said running the horse as aforesaid, he, the said Fleetwood, then and there greatly interrupted and injured one Elvira Martin, then and there being, and other wrongs to the said Elvira Martin then and there did, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

By reference to the statute aforesaid, it will be seen “ that if any person shall run or cause to be run upon any public road or highway, in common use, in this state, any horse or horses, so as to interrupt travelers thereon, or put to fright the horses,” &c.

1. In this case, the indictment substantially pursues the words of the statute in describing the offence. The aggravation of running against the lady therein mentioned, does not vitiate it.

2. The three last counts we consider good, but the first count is insufficient. It neglects to aver that the running was done so as to interrupt travelers thereon. In this view of the law, the Circuit Court erred in quashing the indictment.

The other Judges concurring, the judgment of the court below is reversed, and the cause remanded.