State v. Rector

11 Mo. 28

Opinion

Napton, J.,

delivered the opinion of the Court.

This was an indictment under the 32nd section of the 3rd article of the act concerning crimes and punishments.' The indictment charged that the defendant, on, &e., at,_&c., “ a certain negro woman slave for life, named Mary, then and there belonging to one William S. S., feloniously and ^wilfully did entice, decoy, and carry away, out of the State aforesaid, with intent then and there to procure and effect the freedom of the said slave, contrary,” &c. .The second count charges the offence in nearly the same language as the first, but concludes thus: “And so, the jurors aforesaid do say, that the said E. R. the said negro woman slave, named Mary, then and there, in manner and form aforesaid, feloniously did steal, take, and carry away, contrary,” &c. The defendant moved to quash,^because the counts could not be -joined, and the same judgment could not be rendered. This motion was sustained.

The power of quashing indictments is a discretionary one in all cases, and very rarely to be exercised in a case of this character. The sufficiency of an indictment is properly tested by. a demurrer or a motion in arrest. In indictments for lesser offences, below the grade of felony, the court may, in its discretion”, quash, where the indictment is plainly defective; but in indictments for felonies, the defendant should, in general, be left to his demurrer or motion in arrest. 1 Ch. PL, 300.

The first count of this indictment is clearly sufficient. The second count was doubtless designed to charge the' same offence, but would be held bad on demurrer, unless the last clause can be regarded as surplus-age. Upon this, no opinion is given, as it is unnecessary. The case is not one in which a motion to quash was proper.

Judgment reversed.