State v. Gray

21 Mo. 492

Opinion

Scott, Judge,

delivered the opinion of the court.

The judgment rendered in this case must be arrested for the defects contained in the indictment. The defendants are charged under the 38th section of the act concerning crimes, 2d article, with having jointly made an assault; and several being indicted, it is charged that they, with a knife, which they then and there with their right hand held, made an assault, &c. This is an impossibility. It is on the face of it false, and must be bad. The proper mode, in such cases, is to charge one of the defendants with having made the assault, and the others being present, aiding and abetting, will be as much implicated as though they had actually made the assault. Although the of-fence might have been laid under the section, without the allegation deemed objectionable, yet, as the indictment contains the averment, and that averment shows that the thing charged to have been done was impossible, the indictment cannot be sustained. Judgment reversed;

Judge Ryland concurring; Judge Leonard not sitting.