Thomas v. State

6 Mo. 457

• Court: Supreme Court of Missouri
• Decided: August 15, 1840
• Status: Published

Opinion

Opinion of the court by

Tompkins Judge.

The plaintiff in error was indicted for horse racing. The defendant, demurred to the indictment; the circuit court-over ruled the demurrer, and then assessed the defendants’ fine to ten dollars.

The indictment charges the offence in the words of the -statute, and comment is useless.

But the statute directs that, in all cases where the defendant does not confess the indictment to be true, a plea of not guilty shall be entered, and the '-■ame proceedings shall be had as if the defendant had indictment. formally pleaded not guilty to such

The law never contemplated that a man charged ly, means to confess the indictment tobe true when he murs: even in civil cases the defendant who has a demurrer decided against him, is allowed to withdraw his demurrer and plead. A jury then should have been empannelled to find whether the defendant was or was not guilty.

ceísar/for16" the circuit at-sorib/hísSU,>" name to the inaiotmijnt.

It w as also charged as a defect in the indictment, that it was nc,t subscribed by the circuit attorney; and reference is made to the 6th section of the 3rd article of the act to regulate practice, at law, page 458 of the digest of 1835.— This section directs that declarations and other pleadings ^e signed by the party or his attorney,

This act purports to regulate the practice in civil cases and there is another act to regulate the practice in criminal cases.

........ I am not aware of any provision m that act requiring the circuit attorney to subscribe his name to indictments.

The- judgment of the circuit court is, reversed, and the cause will be remanded to. be proceeded in. conformably to this opinion.