State v. Presbury

13 Mo. 342

• Court: Supreme Court of Missouri
• Decided: March 15, 1850
• Status: Published

Opinions

BIRCI-I, J.

The defendant in connection with three others (partners doubtless, but not so stated) was indicted for having violated the fourth section of the “act to prevent illegal banking and the circulation of a depreciated paper currency.” The indictment contains two counts. The first charging the defendant with passing and the second with receiving bank-notes promissory of the payment of money of less denominations than ten dollars, the same being then and there currency, &c. Presbury alone was served, but the motion to quash and the bill of exceptions being alike personative of all the defendants,_we.shall treat the case here as though they were all jointly and each for himself, complaining of the impropriety and insufficiency of the indictment, leaving the question as to what other effect, if any, shall be given to such a quasi appearance, to be determined (if necessary) hereafter.

_ The grounds of the motion were want of sufficient venue, insufficient description of the offense, misjoinder of defendants, and general informality. The motion was sustained and the State appeals.

The first point has relation to the second count only, in which the venue is to us sufficiently apparent, abbreviated, or otherwise reduced to its essence, it would read, that “ the defendants, at the county of St. Louis aforesaid, unlawfully did receive,” &c. As the courts of the State will judicially take notice of the names of its several counties, and as the indictment otherwise imports to have been found by “the grand jurors of the State of Missouri, within and for the body of the county of St. Louis,” we are unable to perceive in what respect this averment is substantially defective or objectionable.

Concerning the second objection, namely, the want of particularity and certainty respecting the kind of notes received and passed by the defendants, this court has heretofore held, and it has been almost everywhere holden, in reference to analogous statutory offenses, that averments in substantial conformity with the terms of the act were all that was necessary in charging the commission of an offense thereby created. We perceive no. reason for departing from the rule thus established in the case before us, but much to induce an adherence to it. The statute, in unambiguous, every day terms, creates and defines the offense and denounces the penalty for its infraction. The indictment in like terms, understood by everybody, charges the defendants with having committed the offense and incurred the penalty. Had issue, therefore, been taken, as it should have been, the question for the jury would have been 'a simple one, namely, did the testimony support the indictment, that being in the very words of the law ? If so, the defendants were guilty of violating that law, and courts should be slow to lend themselves, when acting under statute of this nature, to a strictness so technical, if not obsolete as to embarrass if not defeat, in most instances, the very end and aim of the law-giving authority. So far from censuring, we think the attorney for the State did well in foregoing the unnecessary task of attempting to deseribe the notes; for had he done so, and from any cause failed upon the trial to sustain the description, we need scarcely refer to the rule which might have well justified the judge below in directing an acquittal.

To our apprehension, the gravamen in this case consists, as set forth alike in the law, and the indictment, in giving currency to “bank-notes” under ten dollars. Tlie applicability, therefore, of former opinions of this court, in the cases referred to by defendant’s counsel, is not as “manifest” to us as it seems to have been to him. In the indictment before us, the averment in the first count is, that the defendants passed to various persons, designating them by name, and to various others unknown to the jury, forty bank-notes of the denomination of one dollar, forty of the denomination of three dollars, and forty of the denomination of five dollars. The second count is substantially as the first one, except that the averments are for receiving such notes from the persons mentioned, and others unknown, and both allege the said notes to have been “then.and there currency,” &c. Surely it apjieared thereby, with “sufficient judicial certainty that the indictors had not gone upon insufficient premises,” and that the indictment was “a plain, brief and certain narrative of an offense alleged to have been committed by the defendants.”

Respecting the point thirdly relied upon by the counsel for the defendant, it was competent and proper, in our estimation, for the grand jury to proceed either against the most prominent offending member of the banking-house in question, or to include all the partners in the same indictment, according to the circumstances of the case.(

a)

We can well imagine reasons which would properly determine them to the one course or the otlier, and which would properly determine, also, the finding upon the trial, some guilty and others not, and this whether severing or standing together in their defense. In short, that is a discretion of which defendants cannot be heard to complain, for under other guarantees of the law it cannot possibly injure, but may greatly serve them. So also, in relation, generally to the informal and unspecific nature of such indictments as the present, the State only incurs the risk of real detriment. In the case before us, not only would a general conviction or acquittal of the defendants, or either of them, be properly pleadable, by them or him in bar of a subsequent indictment for illegally dealing with the persons therein named, but in eon sequence of the averment that the defendants also thus illegally dealt with “divers other persons to the grand jurors unknown,” such a finding would at least presumptively constitute a bar to any subsequent charge for a similar offense during the period covered by the terms and intendment of the averments in the former indictment. This would be so, we apprehend, as well if the second indictment particularized the offense by describing the notes, as if it were again drafted in but general conformity with the terms of the statute ; so that whilst readily perceiving how it may happen, through the haste or inadvertence of the attorney for the State, that he may be estopped by a verdict upon a loose and general indictment from bringing a new and more specific one, there is no view of the case in which we can conceive that such a practice can work wrong or injustice to a defendant. Upon the whole case, then, let the judgment of the Criminal Court be reversed, and the cause remanded.

(a) See Vaughn v. State, 4 Mo. R. 535, and note.