State v. Healy

50 Mo. App. 243, 1892 Mo. App. LEXIS 316

• Court: Missouri Court of Appeals
• Decided: May 17, 1892
• Status: Published

Opinions

Biggs, J.

— The defendant was indicted for criminal libel in the circuit court of Lawrence county. The indictment contained one count, but charged two separate and distinct publications of the libelous matter, one by its delivery to one Thomas Carlin, which was read by him and others, and also another by its publication in a newspaper printed, published and circulated in Lawrence county, where the prosecutor lived. There was a change of venue to the criminal court of Greene county, where the indictment was quashed. The state saved its exceptions to this action of the court, tendered a bill of exceptions, and has brought the case here for review.

The main objection made to the indictment in the court below, and it is the only one which is argued in this court, was that two separate and distinct offenses were charged in one count. It is a well-recognized rule of criminal pleading that no more than one offense can be charged in one count. State v. Murphy, 47 Mo. . To this general rule there are exceptions, and the only question is, does this case fall within any of the exceptions; because it is undeniably the law that every publication of a libel is a fresh offense, for each of which the offender may be separately indicted and. convicted. Odgers’ Slander & Libel, 327; Rex v. Carlisle, 1 Chitty Rep. 451.

If an offense admits of being perpetrated in one or more ways, á count in an indictment which charges its commission in both ways is not bad for duplicity. For instance, if, in a case of libel, it was charged that the defendant published and caused to be published the libelous matter, this would not be the statement of two offenses. 1 Bishop on Criminal Practice, sec. 435. It is very clear that the present case does not fall within this rule.

There is another class of indictments founded on statutes wherein the same section creates several offenses in the alternative. These different offenses may be united conjunctively in one count, and the indictment is sustained by proof of either one of the offenses charged. State v. Klein, 78 Mo. 627; State v. McAdoo, 80 Mo. 216; State v. Pittman, 76 Mo. 56; State v. Murphy, supra; State v. McGrath, 73 Mo. 182. The reasoning adopted in some of the foregoing cases would seem to establish an exception to the general rule that a single count must contain but one offense. But we think that the doctrine of the cases is better stated by Judge Bliss in State v. Murphy, supra. It was there said: “When a statute in one clause forbids several things or creates several offenses in the alternative, which are not repugnant in their nature or penalty, the clause is treated in pleadings as though it created but one offense; and they may be all united conjunctively in one count, and the count is sustained by proof of one of the offenses charged.” Thus section 4588, Revised Statutes, 1889, makes it a misdemeanor for any dramshop or wine and beer-house keeper to sell, give away or otherwise dispose of intoxicating liquors to a minor. Strictly speaking, the statute creates three offenses, yet an indictment so framed as to cover all of them may be treated as stating but one offense.

We do not think it possible to apply this rule to the ease before us. The two publications alleged in the indictment cannot be treated as one offense. Each publication constituted an offense of itself, and each subjected the defendant to a separate prosecution and conviction. This case seems to us to fall within the general rule, and the indictment was objectionable for stating in one count two distinct and independent offenses. State v. Green, 24 Mo. App. 227.

For the reasons stated the judgment of the criminal court must be affirmed, and, as the offense was committed, in Lawrence county, the defendant must be discharged. The jurisdiction of the criminal court of Greene county depended solely upon the sufficiency of the indictment. If the defendant is to be further prosecuted, it must be by a new information or indictment preferred by the proper authorities of Lawrence county. The time during which the present proceeding has been pending will not be computed as a part of the limitation prescribed for such offenses. R. S. 1889, sec. 4002.

The judgment will be affirmed, and the defendant discharged.

Judge Thompson concurs in this opinion; Judge Rombauer dissents.