State v. Levy

Supreme Court of Missouri

State v. Levy

24 S.W. 1026, 119 Mo. 434, 1894 Mo. LEXIS 12

CourtSupreme Court of Missouri

DecidedJanuary 31, 1894

StatusPublished

Cited by14 cases

This text of 24 S.W. 1026 (State v. Levy) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Levy, 24 S.W. 1026, 119 Mo. 434, 1894 Mo. LEXIS 12 (Mo. 1894).

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Opinion

Sherwood, JV

The defendants, at the October term, 1891, were indicted with one Jackson, under the provisions of section 3826, Revised Statutes, 1889, being charged with attempting to obtain money 1 ‘by means and by use of a cheat and a fraud and a trick, and deception, and fraudulent representation, and a false pretense, and á confidence game.”

Jackson, on the overruling of their joint demurrer, went to trial; but the defendants, Levy and Haight, pleaded guilty and each received a sentence of four years in the penitentiary, where they are at present confined.

I. Peeling aggrieved in law if not in fact as the result of their plea to the many-sided multifarious indictment, they bring error and ask that we review the record. The attorney general contends that defendants having pleaded. guilty, are in no position to question the correctness of the • proceedings which resulted as aforesaid. But this is a mistake. The effect of such a plea only amounts to an admission by record of the truth of whatever is sufficiently alleged in the indictment, and no confession, however large and explicit will prevent a defendant from taking advantage of faults apparent of record. If no crime is charged in the indictment, then none is confessed by pleading guilty thereto. 1 Chitty Cr. Law, pp. 431, 662, 663; Fletcher v. State, 7 Eng. 169; 1 Bishop’s Cr. Proc., sec. 795, and cases cited; Wharton on Cr. Pl. and Prac., [9 Ed.] sec. 413.

[437]*437II. Numerous decisions of this court attest that a party defendant in a criminal ease may take advantage of a material defect apparent of record, though such point be raised for the first time in this court. McGee v. State, 8 Mo. 495; State v. Van Matre, 49 Mo. 268; State v. Vaughn, 26 Mo. 29; State v. Meyers, 99 Mo. 107; 1 Bishop on Cr. Proc., secs. 1368, 1370.

III. The insufficiency of indictments based upon the section of the statute in question has frequently been affirmed by this court. State v. Terry, 109 Mo. 601; State v. Fleming, 117 Mo. 377; State v. Cameron, 117 Mo. 371.

For the reasons given, we reverse the judgment and discharge the defendants.

All concur.

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Sherwood, JV

The defendants, at the October term, 1891, were indicted with one Jackson, under the provisions of section 3826, Revised Statutes, 1889, being charged with attempting to obtain money 1 ‘by means and by use of a cheat and a fraud and a trick, and deception, and fraudulent representation, and a false pretense, and á confidence game.”

Jackson, on the overruling of their joint demurrer, went to trial; but the defendants, Levy and Haight, pleaded guilty and each received a sentence of four years in the penitentiary, where they are at present confined.

I. Peeling aggrieved in law if not in fact as the result of their plea to the many-sided multifarious indictment, they bring error and ask that we review the record. The attorney general contends that defendants having pleaded. guilty, are in no position to question the correctness of the • proceedings which resulted as aforesaid. But this is a mistake. The effect of such a plea only amounts to an admission by record of the truth of whatever is sufficiently alleged in the indictment, and no confession, however large and explicit will prevent a defendant from taking advantage of faults apparent of record. If no crime is charged in the indictment, then none is confessed by pleading guilty thereto. 1 Chitty Cr. Law, pp. 431, 662, 663; Fletcher v. State, 7 Eng. 169; 1 Bishop’s Cr. Proc., sec. 795, and cases cited; Wharton on Cr. Pl. and Prac., [9 Ed.] sec. 413.

[437]*437II. Numerous decisions of this court attest that a party defendant in a criminal ease may take advantage of a material defect apparent of record, though such point be raised for the first time in this court. McGee v. State, 8 Mo. 495; State v. Van Matre, 49 Mo. 268; State v. Vaughn, 26 Mo. 29; State v. Meyers, 99 Mo. 107; 1 Bishop on Cr. Proc., secs. 1368, 1370.

III. The insufficiency of indictments based upon the section of the statute in question has frequently been affirmed by this court. State v. Terry, 109 Mo. 601; State v. Fleming, 117 Mo. 377; State v. Cameron, 117 Mo. 371.

For the reasons given, we reverse the judgment and discharge the defendants.

All concur.

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24 S.W. 1026, 119 Mo. 434, 1894 Mo. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-levy-mo-1894.

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