text:
    Hudson, Defendant in Error, v. Garner and Wife, Plaintiffs in Error.
    1. Words charging a woman with being a “ whore” are actionable per se.

    2. An inuendo in the petition, that the defendant intended by such words to charge the plaintiff with adultery, being unnecessary, may be rejected.
    3. Where slanderous words are spoken falsely of another, it is unnecessary to aver or prove express malice.

      Error to Benton Circuit Court.

    The facts sufficiently appear in the opinion.

      F. P. Wright, for plaintiff in error,
    among other points, made the, following : 1. The petition does not state facts sufficient to constitute a cause of action. The complaint is that Mrs. Garner used words by which she meant that plaintiff had been guilty of adultery, and it does not, appear that the plaintiff is or ever was a married woman. • (3 Mo. 160.) 2. Admitting that the words are actionable in themselves, if spoken falsely and maliciously, whether they were intended to impute either adultery or fornication, yet as plaintiff, by inuendo, has declared that they were intended to impute adultery, she was bound to prove that they were uttered in the sense thus ascribed to them. (Smith v. Cary, 3 Camp. 460; 1 Ohitty’s Plead. 437 ; Mix v. Wdodward, 12 Conn. 262 ; Williams v. Scott, 1 Cromp. & Mees. 657 ; 20 Mo. 542.) 3. The petition is also bad in failing to aver that the words were spoken and published falsely and maliciously. (1 Chitt’s PI. 436 ; R. C. 1845, p. 1011.)

      Gardenhire and Morrow, for defendant in error.
    1. The word u whore” imports ex vi termini a fornicatrix and an adulteress. (Johnson’s Die. ; R. C. 1845, p. 1011.) 2. Words spoken slanderous in their character are prima facie maliciously spoken, unless proven to be true: 3. It was not necessary to prove the inuendo. (Starkie on Slander, 213‘, 216, 217 ; 4 Wend. 324 ; 5 Johns. 225 ; 19 Mo. 513.)
   Ryland, Judge,

delivered the opinion of the court.

This is an action for slander. The petition is according to the form under the new code of practice, and it charges that Polly Garner, the wife of the other defendant, Luke Garner, in the presence and hearing of Calvin Beck and divers other persons, on the first day of January, in the year 1854, at the county of Benton, spoke and published the following false and slanderous words, of and concerning the plaintiff; that is to say: “ Go along home (speaking to plaintiff’s son John) and see your whorish mother, and tell your mother to send you down to the south, to see your father Tom (intending then and thereby to charge the plaintiff with having been guilty of the crime of adultery with negro Tom). Your mother (speaking to the plaintiff’s son John) is a whore, and I can prove it. Damn your black soul (speaking to plaintiff’s son John) ; go along home to your whorish mother; you’ll get to the south directly to your father ; any how, Tom is your father. Your mother (speaking to plaintiff’s son John) is nothing but a damned whore — G-d damn her whorish soul; she was nothing but a whore any how ;” meaning then and there and thereby, that the plaintiff was a woman of lewd character, and that plaintiff had been guilty of the crime o£ adultery with said negro Tom : and concludes by laying her damages at the sum of ten thousand dollars.

The defendants appear and answer; deny the speaking of the words, and deny all the allegations of the plaintiff’s petition. Upon the trial, the jury found the defendants guilty, and assessed the plaintiff’s damages at the sum of three thousand dollars.

The defendants file their motion for a new trial, which was overruled ; also their motion in arrest of judgment, which was likewise overruled. They excepted, and bring the case here by writ of error.

In looking into the bill of exceptions, the evidence preserved plainly establishes the speaking of the words ; nor is there any error on the part of the inferior court ii-< relation to the instructions given and refused.

The principal matters relied on by the plaintiffs in error for a reversal of the judgment, arise upon the plaintiff’s petition. It is alleged that the suit is brought by Ursula Ann Hudson, a single woman, and the petition, by it? inuéndoes, charges the defendant, 1st, with intending to impute, by the speaking of the words, the crime of adultery to the plaintiff; that it nowhere appears that the plaintiff had ever been married, or had ever been in a situation to commit the crime of adultery ; that, admitting the words are actionable in themselves, if spoken falsely and maliciously, whether they intended to impute either adultery or fornication, yet as the plaintiff, by inuendoes, has declared that Mrs. Garner intended, by speaking the words, to impute adultery, the plaintiff was bound to prove they were uttered in the sense thus ascribed to them. To support this view, various authors have been cited, which I will notice in proper time.

By our statute, it is actionable to publish, maliciously and falsely, in any manner whatsoever, that any person has been guilty of fornication and adultery. In this petition, the words are actionable of themselves ; and there is no necessity for any colloquium, or any inuendo, to explain, the meaning of such words.

In this petition, the plaintiff has not set forth what the pleaders call a colloquium. But, following the form which our new code of practice says may be used, she charges that Polly Garner, one of the defendants, “ spoke and published the following false and slanderous words concerning the plaintiff. ” Then, after setting forth the words actionable in themselves, the plaintiff, by inuendo, charges that the defendant meant to impute the crime of adultery to the plaintiff. Can this inuendo be rejected and stricken out as surplusage ? If it can, then the petition of the plaintiff may be considered sufficient to support the judgment, however carelessly^ and unprofessionally drawn.

An inuendo is only explanatory of some matter already expressed; it may apply to what is already expressed, but can not add to or enlarge or change the sense of the previous words. (1 Chitty Plead. 437.) An inuendo, says Chitty, (1vol. Plead. 438,) though it may, in the particular case, be unnecessary, “will sometimes limit and confine the plaintiff in his proof, to show that the slander had the meaning thereby imputed to it: thus, where the plaintiff alleged that he was treasurer and collector of certain tolls, and that the defendant spoke of him, as such treasurer and collector, certain words, ‘ thereby meaning that the plaintiff, as such treasurer and collector, had been guilty,5 &c., it was held that the plaintiff was bound by the inuendo to prove that he was treasurer and collector. If the words imported either fraud or felony, but by the inuendo they be confined to the latter, the plaintiff must prove they were spoken in the latter sense. The inuendo affixing a particular signification to the slander, should therefore never be unnecessarily adopted, as is too frequently the case. It is not unusual even, after setting out words which clearly of themselves import a charge of felony, to add, thereby then meaning that the plaintiff had feloniously stolen,5 &c.; this is unnecessary, and, as it is a statement of a mere legal conclusion, is improper, though it may be surplusage.55 On the other hand, where new matter, introduced by an inuendo, without any antecedent colloquium or statement to which it can refer to support it, is altogether unnecessary to sustain the action, then the inuendo may be rejected as surplusage.

The case of Smith v. Carey, reported in 3 Campb. 460, is a very meagre one. The action is for slander of plaintiff in his trade. The words were, that “ he lived by swindling and robbing the public.55 These were laid differently in different counts of the declaration ; but in each count, there was an inuendo that the defendant thereby meant “ that the plaintiff had been and was guilty of felony and robbery.55 The words were proved as laid, but appeared to allude to a transaction from which it might be inferred that the defendant only meant to charge the plaintiff with a fraud. Lord Ellenborough said : “ The words were, in themselves, actionable ; and if there had been no such inuendo as to their meaning, the plaintiff would certainly have been entitled to a verdict; but the plaintiff was bound to show they were spoken in the sense he had ascribed to them; and if the jury should be satisfied they were spoken with intent to impute not felony, but merely fraud, there must be a verdict for the defendant.” It is' not in our power to see how the charge was made here: no doubt, though, the action was for words spoken against the plaintiff in connection with his trade, and that there was a colloquium charging the words as having been spoken of the plaintiff in his- character and capacity of tradesman. The colloquium was necessary here, as the action was for slander of the plaintiff in his trade: then charging the words as having been spoken of the plaintiff and of his trade, and his conduct as tradesman, and by inuendo asserting the meaning of the words thus spoken to impute felony and robbery in the plaintiff in his trade, the inuendo made an important part of the charge ; it gave the words their particular meaning. But such, is not the case at bar, as I will hereafter show. The case of Smith v. Carey, therefore, is too meagre a report to be entitled to much weight.

The case of Williams v. Hott, (1 Cromp. & Mees. 675,) is reported at large, and, with the law laid down there, we have no hesitation in concurring. This was an action of slander for accusing the plaintiff of felonious embezzlement. The declaration contains five counts ; at the commencement of the first there is a prefatory averment, that, before and at the time of the committing of the grievances thereinafter mentioned, he had been and was employed as the servant of certain persons, to-wit, the mayor, aldermen and burgesses of Warwick, in a certain situation, office and employment, to-wit, the situation, office and employment of one of the chamberlains of the commons and commonahle lands within the .parish of St. Mary, in the borough of Warwick ; by virtue and in exercise of which employment, it was the duty of the plaintiff to receive and take in his possession, from time to time, divers sums of money for and on account of the said mayor, aldermen and burgesses. This office of chamberlain was not averred to be a public office, nor was it so described that the ,court could ascertain whether it was a public office or not. The declaration then avers that the defendant, continuing to injure the plaintiff, and to cause it to be suspected and believed that he had been guilty of fraudulent and felonious embezzlement, and to subject him to the pains and penalties provided by the laws against persons guilty thereof, in a certain discourse which defendant then and there had of and concerning the plaintiff, as such servant of said mayor, aldermen and burgesses, and of and concerning the conduct of the said plaintiff, in his said employment, spoke and published of and concerning the plaintiff, and of and concerning the plaintiff’s conduct, as such servant as aforesaid, in his said situation, office and employment, the words set out in the declaration. At the end of the count, there is an inuendo stating that the defendant meant that the plaintiff had fraudulently and feloniously, and against the form of the statute in that behalf, embezzled money received by him by virtue of his said employment.

The three first counts ascribed to the plaintiff the character of servant; they state the alleged slanderous words to have been spoken of the plaintiff as such servant, and they aver the meaning of such words to be, that the plaintiff had committed embezzlement against the form of the statute. Under the manner in which the plaintiff had charged the slanderous words to have been spoken, it was necessary that he should come within the statute relating to embezzlement. (7 and 8 Greo. IV, chap. 29, sec. 47.) The court held that the plaintiff did not come within the fair meaning of that statute; that he was not ffhe servant of another, but fills an office of his own ; that he did not receive money in the course of his employment as the mere agent of another, but was entitled, by virtue of his office, to keep the money in his hands until the end of the year for which he was appointed.

The fourth count is differently framed ; it is not stated in that count that the plaintiff was the servant of any one, but that the words were spoken “ of and concerning the plaintiff, and of and concerning the conduct of the plaintiff, in a certain employment, to-wit, the employment, situation and office of one of the chamberlains of the commons and commonable lands within the parish of St. Mary, in the borough of Warwick,” and there is an inuendo similar to those contained in the preceding counts. It has been contended that this inuendo may be rejected, and that the plaintiff will then be entitled to a verdict; but the court does not state what the nature of the situation of chamberlain is ; and, without knowing this, how can the inuendo be rejected ? You may reject on demurrer, or on motion in arrest of judgment, which is not warranted by the preceding allegations in the declaration ; and all the cases cited by the plaintiff’s counsel are cases of this description. .But the question here is, whether you may reject at the trial an inuendo which is good upon the face of the declaration. By' such an inuendo, the plaintiff makes it a part of his case that the alleged slander bears the peculiar character which he assigns to it. In this case, the question was, whether the plaintiff was such a clerk or servant, or person employed in that capacity, as is embraced by the statutes concerning embezzlement. The Barons Bayley and Yaughan, who tried the case, thought that he was not; and as the slander, by the colloquium and the inuendoes, was against him in that capacity, he having failed to show himself by evidence in that capacity, he could not recover. The inuendoes were sensible, and had a direct tendency to explain the charges as set forth, and as mentioned in the colloquium. But such is not the case at bar.

In Harvey v. French, (1 Cromp. & Mees. 11,) a count for a libel stated that defendant published a false libel of and concerning the plaintiff, containing amongst other things the false, &c. matter, of and concerning the plaintiff; .that is to say, “Threatening letters. — The Middlesex grand jury have returned a true bill against a gentleman of some property, named French, (meaning the said plaintiff,)” with this inuendo : “ That the said plaintiff will verify that the said defendant thereby, then and there meant to insinuate and have it understood, that the said plaintiff had been suspected to have been, and had been guilty of the offence of sending a letter, without any name or signature thereto subscribed, directed to one Trotter, threatening to kill and murder the said Trotter, a subject of the realm, with a view and intent to extort.” This inuendo was held bad ; and it was also held that the matter was libelous without the inuendo, and that the inuendo might be rejected as surplusage. Lord Tenderden, chief justice, said: “We are of opinion, that the inuendoes in the 5th and 6th counts of this declaration are not warranted by the preceding words in those counts ; and all that goes before is, that a threatening letter had been sent by plaintiff ; but it by no means follows that a threatening letter has been directed to any person of the name of Trotter, or that it contained any threat to kill or murder the person to whom it was addressed, as averred in that inuendo. Unless, therefore, these counts can be sustained without the inuendo, the judgment ought to be reversed. We are however of opinion, that these counts, after rejecting that averment, may be sustained without it. Then, the count will stand thus : “ Threatening letters. — The Middlesex grand jui’y have returned a true bill against a gentleman of some property, named French, (meaning the said plaintiff.)”

In Roberts v. Camden, (9 East. 95,) Lord Ellenborough, (who afterwards tried Smith and Carey, already cited from 3 Campbell,) held, that where such new matter was not necessary to support the action, an inuendo, without any colloquium, may well be rejected as surplusage, and can have no effect in enlarging the sense of the words used.

In Beirer v. Bushfield, (1 Watts, 23,) the words laid in the declaration to have been spoken were : “ He was guilty with a woman, for he went into bed with Mrs. Kislar, and stroked her, and he could prove it; thereby meaning that the said plaintiff had committed the crime of adultery with the wife of said John Kislar.” Gibson, chief justice, in delivering the opinion of the court, said : “ The objection is, that the inuendo has carried the meaning of the words beyond their natural import, by converting them into a charge of adultery by a man who is not alleged to have been married. The office of an inuendo is, undoubtedly, to fix the meaning of the speaker, by a reference to something gone before, where the abstract sense of the words would otherwise fall short of an imputation of legal criminality ; and it is a rule that where it enlarges the meaning, without such a reference to an imputation which subjects the accused to an indictment or civil disability, it is fatal to the count even after verdict. If simple fornication then were not an indictable as well as scandalous crime, I would say this declaration contains no cause of action. But if the charge of that crime or adultery will indifferently support an action for words, why should the plaintiff be bound to discriminate very nicely between the charge of the one or the charge of the other ? But as no explanatory matter is laid as inducement, with which the inuendo can be coupled, why .may it not be rejected as surplusage — the words being actionable without it? I admit it may not be done where the inuendo serves to make words actionable, which would otherwise not be so ; for that would extract the sting from the charge as laid, and deprive the declaration of its substance. May it not be done, however, when explanation is superfluous, the words imputing a technical of-fence, by force of their intrinsic meaning ? I know of no case which forbids it. The question, then, is, whether these words are actionable when stripped of the meaning assigned to them by the inuendo ? By the modern decisions, the sense in which words are received by the world, is that which courts of justice are to ascribe to them : that question, then, can not admit of a doubt, for the words in this declaration convey to the popular apprehension a charge of fornication in terms less coarse, though not less explicit, than the most pointed that could be selected.”

Whatever may formerly have been the rule, the law is now settled that, in actions of slander, the words are to be understood in their popular sense. It is too late to call on a court to tax its ingenuity to find out some sense in which the words might have been spoken innocently. That absurdity is exploded. In Andres and wife v. Koppenheafer, (3 Sergt. & Raw. 257) and in Walter v. Singleton, ( 7 Sergt. & Raw. 449,) it was held actionable to say of the plaintiff, “ he (meaning the plaintiff) has committed fornication,” notwithstanding the declaration avers that the plaintiff was, at the time of the uttering the words, a married man. In Thomas v. Crosswell, (7 Johns. 271,) Spencer, J., said:' “ An inuendo, as has often been decided, can not add or enlarge, extend or change the sense of the previous words ; and the matter to which it alludes must always appear from the antecedent parts of the declaration; but when the new matter stated in an inuendo is not necessary to support the action, it may be rejected as surplusage.”

The cases from Pennsylvania are very similar to this p there, the court held that the inuendo might be stricken out. In looking over the various decisions referred to by the counsel, and many others which an examination somewhat extended brought before me, I conclude that an inuendo, where there has been no colloquium or inducement laid by which the inuendo. can become needful as an explanation, and when the words charged are actionable by themselves, may be rejected. The case from Watt’s Reps. of Beirer v. Bushfield, is directly in point; there, the inuendo made the act to be adultery, and yet the plaintiff was not shown to be a married man. The words charged did not need an inuendo ; there was no inducement — nothing which was necessary to be explained by the inuendo. It was rejected; Chief Justice Gibson stating “he knew no case which would forbid its rejection. ” In Walton v. Singleton, a married man was charged with committing an act of fornication ; it was held actionable.

Here, the words charged were understood to mean an unlawful sexual intercourse, and the hearers must not be considered very nice in discriminating ; they knew when a married woman was called “a whore,” what she was charged with; when a single woman was called “ a whore,” what she was charged with: they also knew that it was the same act in each — the same criminal matter, though in one case it is called “ adultery,” and the other, fornication.” I conclude, therefore, that the inuendo, in this case, may he, and must be, stricken out.

There is no force in the objection made against the plaintiffs’ withdrawing the testimony of Colvin Beck, and then introducing witnesses who knew more .about .the transaction.

When slanderous words are spoken of another falsely, the law will affix malice to them. There is no necessity of proving express malice.

The instructions given by the court to the jury were proper enough ; they explained the law of the case, and the court properly overruled those asked for by the defendants.

In looking over the whole case, we find no error for which this court should reverse. The judgment below is affirmed;

Judge Leonard concurring.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    White, Respondent, v. Walker and others, Appellants.
    1. Under the practice act of 1849, where a statement of facts is agreed upon hy the parties, no finding of facts is necessary.
    2. Where a party prosecuted as a vagrant under the statute, (R. O. 1845,) is discharged, judgment for costs may be given against the informer.

      Appeal from Greene Circuit Court.

    Action in the nature of trover for the conversion of a mare. The defendants justified under an execution issued by a justice of the peace against the plaintiff, for the costs of a prosecution commenced upon his information against certain parties as vagrants, who were acquitted of the charge. The cause was submitted on an agreed statement of facts, which is set out in the opinion of the court. Upon this statement, a judgment for the value of the mare, which was found to be fifty dollars, was rendered against two of the defendants, viz.: Walker, the justice of the peace who rendered the judgment and issued the execution under which the mare was sold, and Ayres, the purchaser, from which those parties appeal.

      Gardenhire and Hendrick, for appellants.
    1. The facts not having been first stated in the decision of the court, the judgment must be reversed. (New Code, art. 15, § 2 ; 16 Mo. 129; 17 Mo. 550; 18 Mo. 109, 483; 19 Mo. 325; 20 Mo. 99, 132, 133, 262.) 2. White was the prosecutor by reason of being the informer, and was liable for the costs. (Act concerning costs, R. C. 1845, p. 248, § 4; act concerning vagrants, p. 1070, § 3.)

      F.P. Wright, for respondent.
    1. As the facts were agreed upon, no finding was necessary. 2. The 4th section of the act concerning costs in criminal proceedings does not apply to informers against vagrants, and they are not liable for costs.
   Ryland, Judge,

delivered the opinion of the court.

The following agreed case was submitted by the parties to the court below for its decision, viz : “ Walker being a justice of the peace, upon the information and at the request of plaintiff issued his warrant against certain persons, under the va-. grant act, as vagrants, and on a trial thereof, the above named plaintiff appeared and conducted, by leave of the court, the same against said supposed vagrants ; and the vagrancy failing to be established, they were acquitted and discharged, and the said Walker, as such justice, rendered judgment against the above named plaintiff for the costs of said proceeding. Afterwards, said Walker, as such justice, at the instance of one of said supposed vagrants, issued an execution on said judgment for costs, and it was placed in the hands of Solomon Willis, who was the constable authorized to execute it; and said Willis, as such constable, levied said execution on, and by virtue thereof sold, plaintiff’s mare mentioned in the petition, the sale being forbid by plaintiff; and said Ayres was the purchaser at the price of-; that said Willis appropriated the proceeds of said sale, part to the payment of said judgment for costs, and tendered to said plaintiff the residue. Ayres removed said mare and appropriated her to his use; that said plaintiff forbid said sale of said mare at the time of said sale publicly; that said plaintiff afterwards demanded said mare of said.Ayres, and that the damage, if any, is to be established by the court on further inquiry by testimony.

“ Wm. C. Price, Att’y for White, pl’ff.

“ L. Hendrick, Att’y for def’t.”

1. Upon this, the first question of importance is, does the agreed statement of facts do away with the necessity of the finding of the facts by the court ? Every fact is agreed to, except the value of the mare sold; this was found by the court to be fifty dollars. When the facts are agreed to by the parties and submitted in writing to the court for its judgment, as to the law, there is no necessity for the court again to find the facts. They appear by the agreement. The only fact not agreed to here, was found by the court. So the record presents the facts agreed to and found. There is no weight, then, in the objection on this ground: the cases referred to by the plaintiff’s counsel, of Brant v. Robertson, 16 Mo. 129; Bates v. Bower, 17 Mo. 550; Harper’s adm’r v. Phœnix Ins. Co., 18 Mo. 109; Barberick v. Reid, 18 Mo. 473; Freeland v. Eldridge, 19 Mo. 325; State, to the use of Reyburn, v. Ruggles, 20 Mo. 99; Davis v. Rozier, ib. 132; Jamison’s adm’r v. Hughes, ib. 133, and Whyte v. Burnett’s adm’r, ib. 262, are not similar to the one now before the court, and afford no strength to the objection on this point.

2. The next question is, had the justice of the peace authority to give judgment against the informer for the costs of the prosecution? By the 3d section of the statute concerning “Vagrants,” (R. G. 1845, p. 1070, ) any justice of the peace of the eounty shall, upon information, or of his own knowledge, issue his warrant to the sheriff or constable to bring such person (that is, the supposed vagrant) before him. The 4th section prescribes the proceedings by which it is to be ascertained whether the person is a vagrant or not; and also the punish? ment for the offence. This punishment is a serious forfeiture ; for it consists in depriving the vagrant of his right to manage and conduct himself as a freeman ; and he is to be hired out for six months to the highest bidder, for cash in hand: he is virtually reduced to servitude for that time — a forfeiture not to be weighed, in the estimation of freemen, by dollars and cents. The statute concerning costs, (R. C. 1845, art. 2, p. 248-9, secs. 46 and 47,) must settle, for the most part, this question. The 4th section is as follows: “In all prosecutions for any fine, penalty or forfeiture instituted otherwise than by indictment, unless the same is commenced by the attorney general or circuit attorney, or some other officer whose duty it is to institute the same, the informer or person commencing the prosecution, although he may not be entitled to any part of the Said fine, penalty, or forfeiture, shall be adjudged to pay all costs, if the defendant is acquitted.” The 6th section: “In all cases except those in which death or imprisonment in the penitentiary is the sole punishment, when any person shall be committed or recognized to answer a criminal offence, and no indictment shall be found against such person, the prosecutor shall be liable for costs, unless the grand jury taking the matter in consideration shall determine that the county and not the prosecutor shall pay the same,” &e. See. 7. “If a person charged with an offence not punishable with death or imprisonment in the penitentiary alone, shall be discharged by the officer taking his examination, the costs shall be paid by the prosecutor or person on whose oath or information the same shall have been instituted, unless the officer shall certify that there was probable cause for the prosecution, in which event they shall be paid by the county in which the offence was committed. When the prosecutor is condemned to pay the costs, the officer taking the examination shall issue execution for them forthwith, if demanded,” &c.

In our opinion, the last question is one of easy solution. The statute law of the state has expressly provided for such cases. Here, the prosecutor conducted the prosecution before the jury. It was originated by his information — -the accused persons were discharged, having been acquitted by the jury, and the justice of the peace rendered- judgment for the costs against the prosecutor, and issued execution for the collection of the same. On this execution the plaintiff’s property-was sold (he being the prosecutor), and the defendant, Ayres, purchased it. We hesitate not the least in saying that the jus-' tice of the peace, A. H. Walker, had jurisdiction and authority under the law of this state, upon the facts agreed to in this record, to issue the execution for the costs in the proceedings against the supposed vagrants, against the prosecutor in those proceedings.

The judgment of the Circuit Court against the defendants was consequently erroneous, and must be reversed;

Judge Leonard concurring ; Judge Scott absent — sick.


text:
    Skinner and others, Appellants, v. Platte County, Respondent.
    1. An allowance against a county in favor of an individual, will not bear interest until the warrant has been presented to the county treasurer for payment, and the treasurer’s endorsement is obtained that payment was not made for want of funds in the treasury, as required by statute.

      •Appeal from Platte Circuit Court.

    The case sufficiently appears in the opinion of the court.
    Vories, for appellant,
    insisted that the allowance was a judgment, or at least such a settlement of accounts that it bore interest from its date. (R. C. 1845, tit. Interest.)
    Gardenhire, for the county.
    1. Judgments at common law do not bear interest. (4 McCord, '212.) 2. The allowance is not a judgment within section 3d of the act regulating interest; nor is it a “settlement of accounts” within the 1st section of said act. County warrants bear no interest until they have been presented at the treasury and payment has been refused. (Robins v. Lincoln county, 3 Mo. 42.)
   Ryland, Judge,

delivered the opinion of the court.

The question here is, will an allowance against a county in favor of an individual bear interest before the warrant against the county has been presented to the county treasurer for payment, and the treasurer’s endorsement thereon, showing that payment was not made because there were no funds in the treasury to pay the demand ? We think not. In order to draw interest, the warrant for the allowance must be made out and presented for payment to the treasurer; if he has funds to pay with, he pays the warrant without interest; if he has no funds to pay with, “ he shall so certify on the back of the warrant, date and subscribe the same.” (R. C. 1845, p. 311, sec. 6.) From this date the warrant will bear interest. Here, the plaintiffs claimed their demand against the county of Platte in 1851; the county court allowed them four hundred dollars ; they were dissatisfied with the court for allowing no more, and refused to accept a warrant for the sum thus allowed them. In March, 1855, they moved the county court to grant them a warrant for the said allowance of $400, together with interest thereon from the date of said allowance. This the court refused to do, so far only as respected the interest. The plaintiffs appealed to the Circuit Court; that court sustained the county court, deciding that the plaintiffs were not entitled to interest. The plaintiffs moved for a new trial, and being overruled, they excepted, and bring the case here.

The plaintiffs are not entitled to interest on the allowance in their favor. They refused to take the warrant; indeed, it may be said they refused to take the money. What right have they then to demand interest from the county ? Can they, by their obstinacy, compel the county to remain tbeir debtor, and this, too, at the expense of paying interest ? Surely not. These county warrants do not bear interest until a demand is made for payment, and the treasurer’s endorsement on the back of the non-payment because there are no funds.

By the act of 1849, the county warrants are made redeemable according to their respective dates. The treasurers are to pay the oldest outstanding warrants first, and no interest is to be allowed on any warrant after the money has been received into the county treasury sufficient for its redemption; but the treasurer shall set apart and keep the money sufficient for such warrant until it is called for by the holder of such warrant. (Acts of 1849, p. 37.) The plaintiffs have not the least pretence to demand interest on their claim. The judgment of the Circuit Court is affirmed;

Judge Leonard concurring.


text:
    Guenther, Defendant in Error, v. Birkicht’s Administrator, Plaintiff in Error.
    1. Where a step-son continues to reside in the family of his step-father after coming of age, as before, the law will not imply a contract to pay him for services rendered.

      Error to Cole Circuit Court.

    The case is stated in the opinion of the court.

      M. M. Parsons and H. Clay Ewing, for plaintiff in error,
    that no contract was implied, cited Williams v. Hutchinson, 5 Barb., S. C., Rep. 122 ; 3 Comstock, 312 ; Andrus v. Poster, 17 Vermont, 556 ; 5 Watts & Seg. 513 ; 1 Parsons on Contracts257.
    Gardenhire, for defendant in error,
    cited Preto v. Brown, 4 Mass. 675 ; 14 Pick. 512; 4 Wend. 403; Story on Contracts, § 11; 12 Wheaton, 341.
   Ryland, Judge,

delivered the opinion of the court.

This was originally a claim against the estate of Henry Birkicht, for seven hundred and twenty-five dollars, in favor of Frederick Guenther, presented to the Cole county court for allowance. The account consisted of two items — one for a demand evidenced by note executed by Birkicht to Guenther, for the sum of $125; the other for four years’ work and labor done for the deceased in his life-time by Guenther, at $150 per year, making $600.

The county court allowed the sum of $725, the full amount of the account against the estate, and the administrator, Ewing, appealed to the Circuit Court of Cole county.

Upon the trial of the cause in the Circuit Court at the August term, 1855, the jury found the issues for the plaintiff, and assessed his damages at the sum of $725. The administrator moved for a new trial, which being overruled, he excepted, and afterwards sued out his writ of error, and the case is now before this court on said writ of error.

From the bill of exceptions, it appears that Birkicht married the mother of the plaintiff, Guenther, who was a son by her former husband; that Birkicht moved from Germany to this State in 1841, and that his wife and his step-children moved out in 1842 ; that the plaintiff was sixteen or seventeen years old when he moved to this state with his mother in 1842 ; that he always lived with his step-father and his mother after her marriage with Birkicht, like one of the family; that he continued to live with them as one of the family until he went to California, in 1851; that he married and took his wife into the family and they lived as members of the family; that his wife had two children while living in the old man Birkicht’s family ; that Guenther worked as one of the family; that wages from 1847 were $150 per annum for men ; and that Guenther’s work was worth $150 per year. There was no proof of any promise to pay Guenther for his work — no agreement or understanding between the -old man and his step-son in relation to this matter.

On the trial, the Circuit Court instructed the jury “ that i£ they believed from the evidence that the plaintiff was the stepson of Birkicht, deceased, and performed work and labor for him after he was twenty-one years of age, the jury will allow plaintiff, in addition to the amount of the note, what such work and labor were reasonably worth, unlqss they find the demand is barred by the statute.” “2. If the work and labor continued up to 1851, the amount is not barred by the statute of limitations, for such an account is not barred until five years after the last work and labor is performed.”

The defendant objected to the first instruction, and asked the court to instruct the jury as follows : “ That, if the jury believe from the .evidence that the deceased, Henry Birkicht, was the step-father of the plaintiff, and that the deceased took plaintiff in his house while he was a minor, and the plaintiff continued to live at the house of the deceased as one of his.family, the presumption of any obligation or promise on the part of deceased to pay plaintiff any thing • for his services during the time he so lived with the deceased is rebutted, and it devolves on the plaintiff to prove to the satisfaction of the jury that the deceased promised to pay plaintiff for his services.” The court refused to give this instruction, and the defendant excepted.

The main question here is, upon which party is the burthen of proof to show the understanding of the parties that plaintiff should be paid for his services after coming of age ? Under the instructions given for plaintiff, the jury found for him. These instructions were to the effect that, upon the proof in the case, the plaintiff had made a prima facie case for recovery.

There is no controversy as to the plaintiff’s right to recover on the note. The controversy alone rests on the item for four years’ work and labor. This is for work and labor after the plaintiff becomes of age.

From the facts, — the plaintiff living in the family of the deceased as one of' his children, and being provided for with his wife as such, — the presumption that he was to be paid for his services, implied by law under other circumstances, is repelled, and it devolves upon the plaintiff to show affirmatively, that such was the understanding of the parties. The first instruction, therefore, given for the plaintiff did not properly declare the law in this case. The relation of step-father and stepchildren being one of very common occurrence in life, it is thought proper to notice some of the general rules and provisions of law upon this interesting subject. In the ease of Williams v. Hutchinson, (5 Barb., S. C., Rep. 122,) the Supreme Court of New York held that a person is not bound to maintain the child of his wife by a former husband ; nor is he entitled, by law, to claim the services of such child, unless the latter chooses to render them. But if an individual does, in fact, maintain and support his step-child, in his family, and treats him as a member of it, the law, under such circumstances, will not imply a promise to pay the step-child for the services rendered; nor will it permit a recovery therefor, unless an express promise is shown, or something to prove that such ,was the expectation on both sides. The fact of the step-father standing in loco parentis, effectually repels all presumption of service for hire or wages, and renders an express promise indispensable to the maintenance of an action by the stepchild. In this case, Johnson, J., in delivering the opinion of the court, said : “A person is not bound to maintain the children of his wife by a former husband. Not being bound to provide for them, or furnish them with any support, he is not entitled to their services, provided they choose to live elsewhere ; and in the latter case, he can not recover for their services, either in his own right or that of the mother. While the mother remains a widow, she is bound to provide for her children, and is entitled to control them while under age, and to collect their earnings while in the service of others. But when she marries, her legal capacity is gone — she can no longer control the person or property, or earnings of her children. This was an action for labor and services. The plaintiff’s mother married the defendant when the plaintiff was about nine years old; the plaintiff then went to live with defendant with his mother. He resided there until he was- about seventeen years old ; he then left defendant and did not return. While he lived with defendant, he was treated, in all respects, as a member of his family — was clothed and schooled in the same manner as defendant’s children were, and performed labor suitable for a person of his age and condition. There was no proof of any agreement.or understanding that he was to recover wages and to account for his board, schooling and clothing, and no accounts were kept on either side. The only evidence on the subject of an understanding to pay was, that when the plaintiff and another brother were about leaving the defendant, the latter said ‘ he did not wish them to leave, and was willing to pay for what they had done.’ It was a remark made by defendant in the presence of the plaintiff and his mother and other members of the family, but was not addressed to any one in particular. The court said there was no evidence in this case of any express promise to pay, and no proof that there was any expectation on either side, while the services were being performed, that payment was to be made or demanded. The remark proved to have been made by the defendant as the plaintiff was about leaving, ‘ that he did not wish him to leave, and was willing to pay for what he had done,’ amounts to nothing more than the expression of a willingness on the defendant’s part to pay the plaintiff for his services, if he would stay with him. It furnishes no evidence of any prior understanding or agreement, but, on the contrary, rather'rebuts the presumption, as the remark was not particularly addressed to the plaintiff, and no question was raised or suggested by him about any pay. The case must, therefore, turn entirely upon the ques - tion, whether, under the circumstances of this case, the law will imply a promise on the part of the defendant. I think there can be no doubt that it will not. It is clear from this case, that the plaintiff lived with the defendant as a member of his family, in all respects, and was treated by the latter as one of his own children ; that, although the defendant was not bound to provide for him, or furnish him with any support, and was not entitled by law to claim the plaintiff’s services, if he had not chosen to render them, yet that he did, in fact, support and maintain him in his family, and as a member of it, and stood in loco parentis to him. The books are full of cases to show that, under such circumstances, the law will not imply a promise to pay for services thus rendered, or permit a recovery, unless an express promise is shown, or something to prove that such was the expectation on both sides. (Robinson v. Cushman, 2 Denio, 149; Andrus and wife v. Foster, 17 Vermont, 556; Fitch v. Peckham, 16 Verm. 150; Swires v. Parsons, 5 Watts & Searg. 357 ; Wiers v. Wiers’ adm’r., 3 B. Monroe, 645; Candors’ Appeal, 5 Watts & Searg. 513 ; Wills v. Dunn, Wright, 134.)” I have extracted very copiously from this case. One of the judges — WelR—dissented. The doctrine, however, of the majority was afterwards sustained by the court of appeals of New York, in a case precisely similar, brought by a brother of the plaintiff against the same defendant. (3 Comst. 312.) Wells, J., in his dissenting opinion, places his dissent upon the ground that the services were rendered during the minority of the plaintiff; he admits that the doctrine of the majority of the court is sustained by the authorities referred to, but says, that in those cases, the services rendered were rendered by adults, who were competent to contract or to consent to any arrangement upon which the law would imply a contract or agreement to pay or not to pay for services rendered, or to waive, either in express terms or by implication, any legal right which would otherwise vest. In the casein Comstock, Pratt, J., in delivering the opinion of the court, said, that “ the parent is not legally entitled to the custody or earnings of his children after they arrive at the age of twenty-one; nor is he entitled to the earnings of or bound to maintain his nephews or nieces ; yet, if they live with him as members of his family, without any contract or understanding that he shall pay for their services, or receive pay for their maintenance, the law will not imply a promise to pay on either side.” He then states the doctrine laid down by Wells, J., in his dissentient opinion, and declares that he can not concur in the conclusion to which the learned judge arrived. He continues : “ A contract or promised pay, as a matter of fact, requires affirmative proof to establish it. Under certain circumstances, when one man labors for another, a presumption of fact will arise that the person for whom he labors is to pay the value of his services. It is a conclusion to which the mind readily comes, from a knowledge of the circumstances of the particular case, and the ordinary dealings between man and man; but when the services are rendered between members of the same family, no such presumption will arise. We find other motives than the desire of gain, which may prompt the exchange of mutual benefit between them, and hence, no right of action will accrue to either party, although the services or benefits received may be very valuable. This does not so much depend upon an implied contract that the services are to be gratuitous, as upon the absence of any contract or promise that a reward should be paid. So far, then, as it depends upon any presumption of fact, the difficulty is as great or greater in the ease of an infant than an adult.” It is said that the law will imply a promise, in many cases, even against the will of a person sought to be charged, when reason and justice dictate that he should pay. This is true. But the difficulty is, in applying this doctrine to the circumstances of the case now before us. Do the facts show that the plaintiff rendered valuable services to the defendant for years after he became of age, without any corresponding benefits received by plaintiff? Is the calculation in dollars and cents the only consideration to be made in such cases ? Here the plaintiff is brought from Germany with his mother, when he was about sixteen or seventeen years old ; he lived with his step-father as one of the family ; he married and brought his wife into the same family, and continued to live as members of the family ; had two children, who were also treated as part of the same family. There are considerations growing out of the relation which the parties sustain to each other which can not be computed in money. To say nothing of the benefits derived from a father’s care and a mother’s love, of the thousand joys which can only be found by the dutiful child in that sacred sanctuary called home, is it nothing to be trained up in those habits of industry and in that knowledge of, business which fit a child for the actual duties of life Í

In Swires v. Parsons, the plaintiff brought the action against the administrator of Isaac Parsons, deceased, to recover compensation for work, labor and service performed for the intestate in his life-time. The proof was that plaintiff had lived for many years with the intestate, and performed the labor and service as alleged, and the witnesses testified that she lived with him as his wife, and was reputed as such. The action was brought in the common pleas of Center county, Pennsylvania. The president of the court was of the opinion that the plaintiff could not recover, and directed a verdict and judgment for the defendants. Upon error in the Supreme Court, this judgment was affirmed. Rogers, J., in delivering the opinion of the court, remarked, “that the evidence establishes one of two things — either that the plaintiff and intestate were married, or that she was living in a state of concubinage. Either position is fatal to the claim for compensation, unless, in the latter case, there was superadded proof of a contract of hiring, of which there is not a shadow of evidence. Without this consideration, however meritorious her services may have been in one respect, the action can not be sustained. The action of assumpsit is founded on a contract either express or implied ; and as an express contract is out of the question, the action must be sustained, if at all, on the implied promise. But this can not be; for if a man work for another merely with a view to a legacy, he can not afterwards resort to an action of implied assumpsit. In Osbourn v. The Governors of Guy’s hospital, (2 Strange, 728,) where this principle was first ruled, it is said: ‘ The court must consider how it was understood by the parties at the time of doing the business, and the man who expects to be made amends by a legacy can not afterwards resort to an action.’ It is-enough for the plaintiff prima facie to show labor performed, to raise an implied assumpsit to pay for it. But the facts in evidence rebut the implication of a promise, which would otherwise arise ; for the relation which they bore to each other is inconsistent with any understanding for compensation. It is a situation in which she voluntarily placed herself, and she must rely upon his bounty for support.” (5 Watts & Sergt. 857.) In Andrus and wife v. Foster, (17 Verm. 556,) it appeared that the plaintiff’s wife, being a niece., of the defendant, and taken by him when she was a child to live with him until she became of age, was told by defendant,-when she arrived of age, that she was free to go, if she chose ; but that if she remained and did well, he would do well byher ; she thereupon continued to reside with him for about six years as a member of the family, and was uniformly treated as she was before she became of age, neither party keeping any accounts. The plaintiff then left the defendant and went to New Hampshire, and continued to reside there, without any expectation of returning, for about five years, when, at the request of the defendant, she returned and worked for him and his family for about a year. It was held by the court that she was not entititled to recover compensation for her services during the time which elapsed after she became of age and before she went to New Hampshire, but that she was entitled to pay for her services rendered for defendant after she returned from New Hampshire. This ease lays down the rule that when a daughter continues to reside in the family of her father after the age of majority the same as before, the law implies no obligation on the part of the father to pay for her services. The cases cited by the counsel for the plaintiff below, from Massachusetts Reports, do not militate against the doctrine of the cases from New York, Pennsylvania and Vermont. By the Massachusetts ease of Freto v. Brown, (4 Mass. 675,) it is held, that a minor, whose father is dead, and whose mother afterwards marries, is entitled to his earnings in the service of a third person. The father-in-law may have an action on an implied assumpsit for necessaries, but can not claim his earnings against the minor’s consent. Worcester and wife v. Marchant, (14 Pick. 510,) is to the same effect. As this case must go back to the Circuit Court, we would not be understood as laying down the law so as to require the plaintiff to produce proof of an express promise on the part of Birkicht to pay the plaintiff for his services after he became of age, or to produce proof of a specific contract for that purpose ; but we say the burthen of proof is on the plaintiff to show, to the satisfaction of the jury, that such was the understanding of the parties. The merely performing work and labor, as a member of the family, after the plaintiff became of age, he having lived with his mother and step-father for a long time before and after that event as one of the family, and having been treated as one of the family, is not sufficient to raise the implied promise. But as the request made to the niece to return from New Hampshire and again live with the uncle, in the case from Yermont, and her compliance with such request, were considered as warranting the courts in raising an implied promise to pay for the work and services of the niece after her return, — so in this case, any facts which the plaintiff can offer, in order to show that it was the expectation or understanding, after he became of age, by the step-father and himself, that he was to be compensated for his work and labor, will be proper; and if such proof be sufficient to warrant the jury in coming to the conclusion that such was the understanding or the expectation of both parties, then the law will compel the administrator, Ewing, to pay to plaintiff the reasonable worth of such services under the circumstances.

The judgment of the Circuit Court is reversed and this cause remanded, to be proceeded in further, in accordance with the principles expressed in this opinion;

Judge Leonard concurring ; Judge Scott absent by reason of sickness.


text:
    The State, Defendant in Error, v. Leonard, Plaintiff in Error.
    1. It lies in the discretion of the court, whether it will compel the State to elect the count of an indictment on which the defendant shall he tried. (State v. Jackson, 17 Mo. 544. affirmed.)
    2. An indictment, under the 38th section of article 2 of the act concerning crimes and punishments, (R. S. 1845, p. 351,) which charges that the defendant feloniously assaulted and wounded M. D., wife of D. D., with a large stone held in his hand, &c., alleged to have been a deadly weapon, likely to produce great bodily harm and death, and her the said M. D. did then and there strike, beat, wound, and ill-treat with great force, which was likely to produce death, &c., is sufficient. The words “ with intent her the said M. D. then and there to wound and ill-treat,” may be rejected as surplusage.
    3. As to what constitutes a wounding within section thirty-eight of article two of act concerning crimes and punishments.
    4. State v. York, infra, p. 462, affirmed.

      Error to Eent Circuit Court.
    The opinion of the court is sufficiently full in the statement of the facts.
    Arnold, for plaintiff in error.

      Gardenhire, for the State.
   Ryland, Judge,

delivered the opinion of the court.

This is an indictment against the defendant, under the S4th and 38th sections of the second article of the act concerning crimes and punishments, (R. C. 1845, p. 350, 351). The defendant appeared and pleaded not guilty. Upon a trial, the jury found the defendant guilty on the first count of the indictment, and not on the second, and assessed his punishment at afine of five hundred dollars.

The only questions then that arise in this case are on the first count, and these questions, giving the'defendant the benefit of every thing that is found on the record, relate in the first place to the refusal of the court to compel the state to elect which count of the indictment she would proceed under; in the second place, as to the propriety of the instructions given and refused; and lastly, as to the sufficiency o£ the indictment.

1. The first point, as to the election of the count in the indictment under which the state shall proceed, has been settled by this court against the defendant, in the case of the State v. Jackson, 17 Mo. Rep. 544 ; see also B Hill’s Rep. 160. This point is therefore ruled against the defendant.

2. The indictment has two counts — the first is under the 38th section of article 2d, act of 1845, crimes and punishments ; and the second under the 34th section of the same article. We have nothing to do with the second count, the jury finding the defendant not guilty under that count. The first count then charges (throwing off the verbiage) that the defendant feloniously assaulted and wounded Malissa Davenport, wife of David Davenport, with a large stone held in his hand, &e., alleged to have been a deadly weapon, likely to produce great bodily harm and death; and her the said Malissa did then and there strike, beat, wound, and ill-treat with great force, which was likely to produce death, &c. This is the substance of the charge. This, we think, is sufficient under the 38th section o£ article 2, above mentioned. The indictment is informal, but we think substantially good. The words, “with intent her the said Malissa Davenport then and there to wound and ill-treat,” we think may be thrown off as surplusage; they form no part of the description of the offence ; it is substantially set forth without them.

3. As to what constitutes á wounding under this statute, we may suppose from the evidence that the prosecutrix was wounded in the legal sense of the term ; for, she says, that “ there is a scar left still,” made by the wound. In Rex v. Payne and another, it was held, if a person strike another with a bludgeon, and break the skin and draw blood, it was a sufficient wounding to be within the statute 9 Geo. IV, ch. 31, sec. 13. Under this act, it is not at all material what the instrument is with which the party is wounded. The punishment under this statute of 9 Geo. IV, chap. 31, sec. 12, was in some cases death; a wound from a kick with a shoe on, will be within the same statute. (See Rex v. Briggs & Briggs; 1 Moody’s Crim. Cas. 318.) In criminal cases, the definition of a wound is an injury to the person by which the skin is broken. Moriarty v. Brooks, 6 Car. & Pay. 684 (25 Eng. Com. Law, 598) per Lord Lyndhurst, C. B. ; Rex. vs. Withers, 4 Car. & Pay. 446 (19 Eng. Com. Law, 466). .Inflicting a wound on a person by throwing a sledge hammer at him, is a wounding within 9 Geo. IY, chap. 31, sec. 11 & 12, although the sledge hammer from being blunt, was not an instrument calculated to inflict a wound. Dr. Johnson defines a wound to be “a hurt by violence.” In the ease before us, the instrument was a stone about the size of the fist of a woman — for thus the witness described it — and it was thrown with such violence as to knock the woman down ; and when she was afterwards examined on the trial as a witness, about a year after she received the blow, she said, “it bruised me severely; there is a scar there yet.” There can be no doubt, then* of this being a wound, under the 38th section of the act aforementioned. This settles the point in regard to the indictment; it is sufficient, and we think the wound was one embraced by the statute.

As to the instructions, we see no error in those given to the jury; nor did the court err in refusing to give those refused. Although if the charge had been of ah intent to kill one person, it would not have been sufficient to prove a different intent; as, to kill another person, yet in this case there was no such charge ; at least in the first count, .under which the defendant was convicted; and the instruction as applicable to that count was correct.

4. In regard to the motion in arrest of judgment, because Dent county was formed unconstitutionally, and is therefore no county in the eye of the law, we refer to what has just been said in the case of the State v. York & York, from the same county, and also to State v. Rich & Rich, 20 Mo. Rep. 393. In looking over the record in this case as well as record in the case of York & York, just decided, we might have justified ourselves in dismissing the writ of error in both cases, without wading through a mass of papers bundled together without regard to sense, priority of date, or any thing but mere chance. But we examined, and assorted, and arranged the matters as much as was in our power, and concluded to pass upon the the cases on their merits as far as we could ascertain them.

Upon the whole record, then, we find no error authorizing us to reverse the judgment below.

The judgment is accordingly affirmed ;

Judge Leonard concurring.


text:
    The State, Appellant, v. Hambleton, Respondent.
    1. An indictment, under section 57 of article 3 of the act concerning crimes and punishments, (E. C. 1845,) which charges that the defendant “ did unlawfully, wilfully, maliciously and feloniously kill a certain horse beast, to-wit, one mare, then and there the property of one A. B.,” See., is sufficient. Courts will take judicial notice, that horses are included in the term “ cattle,” as used in that section.
    2. In such an indictment, it is not necessary to charge malice against the owner of the animal killed, nor to state the manner of killing.

      Appeal from Polk Circuit Court.

    The indictment, which is set out in the opinion of the court, being quashed below, the circuit attorney, on behalf of the State, appealed to this court.'
    Gardenhire, (Attorney General,) for the State.

      F. P. Wright, for respondent.
    1. The indictment does not follow the words of the statute. It should have charged the defendant with killing certain cattle, instead of a certain horse beast. (2 Hawk. ch. 25, § 110.) 2. The indictment is also defective in not charging malice against the owner, or otherwise describing the offence, so as to have made it apparent that the act was malicious. (State v. Jackson, 22 Iredell’s Rep. B29.) 8. The indictment is also bad in not charging the
      manner of killing. (1 Archbold’s Crim. PI. 86, note 1; 2 Hale, 183, 184, 187, note ; Hawk. B. 2, C. 25, § 57.)
   Ryland, Judge,

delivered the opinion of the court.

The only question in this case is upon the sufficiency of the indictment, which is as follows, to-wit;

“ State of Missouri, county of Polk. In the Circuit Court, October term, A. D. 1853. The grand jurors for the State of Missouri, sworn, and charged to inquire for the body of the county of Polk, upon their oath present, that Montraville Hambleton, late of the county of Polk aforesaid, on the 10th day of September, in the year of our Lord eighteen hundred and fifty-three, at the county of Polk aforesaid, did then and there unlawfully, wilfully, maliciously and feloniously kill a certain horse beast, to-wit, one mare, then and there the property of one Albert Bryant, of the value of fifty dollars, contrary,” &c.

This indictment was demurred to by the defendant. The demurrer was sustained. The indictment is founded on the 57 §, 3 art. of stat. concerning crimes and punishments. (R. C. 1845, p. 364, § 57.) “If any person shall wilfully and maliciously kill, maim, or wound any cattle of another, he shall on conviction be punished as in the next preceding section is provided:” that is, by imprisonment in the penitentiary not exceeding three years, or in the county jail not less than six months, or by fine not less than two hundred and fifty dollars, or by both a fine not less than one hundred dollars, and imprisonment in the county jail not less than three months.

The defendant’s counsel in this court-contends, that the indictment is insufficient, because it does not follow the words of the statute. The averment should have been certain cattle, instead of a certain horse beast. In the second place, it is defective in not charging malice against the owner, or otherwise describing the offence, so as to have made it apparent to the court that the act was malicious. Thirdly — the indictment is bad in not setting out the manner and means ,of killing.

We do not think any of the objections to the indictment well taken. The offence is sufficiently charged. In the Crown Circuit Companion, an old but a most excellent book for a circuit attorney, we find the form of an indictment for feloniously and maliciously killing a gelding. The substance is as follows : “ One black gelding of the price of fourteen pounds, of the goods and chattels of one J. J., in a certain field belonging to him the said J. J., then and there being, feloniously, unlawfully, wilfully and maliciously, then and there did kill and destroy, to the great damage of him the said J. J., against the form, &c., and against the peace, &c.” (Or. Cir. C. 83.) The pleader has not here pretended to describe the means used to kill, nor has he described the manner and mode of killing.

The expression in the statute, “ any cattle,” is broad and ample enough to embrace the animal killed in this case, and there was no necessity to use the words “ certain cattle.” A certain “horse beast, to-wit, one mare,” is particular and descriptive enough. Indeed the counsel for the defendant does not pretend to deny that the word “ cattle” includes horses in this section of the statute. Our statute, that is, the 57th section before cited, is almost a literal copy of the 7 & 8 Geo. IV, chap. 30, § 16, so far as it regards the description of the offence. The English statute delares, “ that if any person shall unlawfully and maliciously kill, maim or wound any cattle, &c.” Ours has the word “ wilfully,” instead of “ unlawfully.” Now, under this statute, the word cattle embraces horses, mares, colts, bulls, oxen, cows, heifers, calves, &c. In Rex. v. Chalkley, 1 Russ. & Ry. C. C. 258, the defendant was indicted, under 9 George I, ch. 22, for killing certain cattle, to-wit, “ one mare.” The court held, that to charge the defendant with killing “ certain cattle,” without stating what kind of cattle, would not be sufficient. The indictment in the first count charged “that John Chalkley, on the 12th day of September, 1813, at Ilorsney, certain cattle, to-wit, one mare, price £5, the property of Edward Kimpton, unlawfully, wilfully, maliciously and feloniously, did kill, against the statute, &c.” Here we also see that the pleader has not thought it necessary to describe the mode of killing, or the means or instrument used for that purpose. The defendant in this case was convicted; but because the evidence showed the animal killed wfis a colt, and did not show its sex, all the judges held, that it was not sufficient to support the charge of killing a mare. They also held, that it was necessary to specify in the indictment the particular species of cattle killed or maimed.

In the case of Taylor v. State, 6. Humph. (Tenn.) 285, the defendant was indicted under a statute of Tennessee, which provided, “ that if any person shall wilfully or maliciously kill, or destroy, or wound the beast of another, he shall be fined not exceeding two hundred dollars, and be imprisoned not exceeding three months.” The indictment, charged that Taylor, “ on the 16th of December, 1844, in Davidson county, did wilfully and maliciously kill a cow, of the value of five dollars, the property of William Watts, contrary to law, &c.” Upon this indictment, Taylor was tried and found guilty, sentenced to p^ty a fine and be imprisoned. He moved in arrest of judgment, which being overruled, he appealed to the Supreme Court. In the Supreme Court, it was insisted that the indictment was bad, because it was not alleged that the animal killed was a “beast;” but the court said the word “beast,” here used, is a generic term, and includes all animals of that description. The indictment described the specific animal killed, and the animal so described is a “ beast,” and by necessary consequence the indictment charged that the defendant killed a “ beast.” The court affirmed this judgment. In this indictment, no mention is made of the means used to kill, nor of the manner or mode of using the means. ' "

In Regina v. Tivey, (1 Denn. C. C. 64,) the prisoner was tried before Mr. Justice Patteson, at the Derby Winter Assizes, 1844, and convicted on an indictment charging him with unlawfully, maliciously and feloniously wounding a mare, the property of Richard Beaumont Child. This indictment was under the statute 7 & 8 Geo. IV, ch. 30, § 16, before cited. The fact of wounding was clearly proved, but no evidence as to the motive of the prisoner. No malice was shown towards any one, and it did not appear that he knew to whom the mare belonged, or had any knowledge of the prosecutor, Richard Beaumont Child. The prisoner’s counsel urged, that evidence of malice was necessary since 1 Vic. ch. 90; the learned Judge held that it was not, and his brother Judges, Denman, C. Justice, Pollock, C. B., Coleridge, Coltman, Rolfe, Erie, and Platt, concurred with Patteson. In Rex v. Salmon, (1 Russ. & Ry. C. C. p. 26,) it was held, that, in an indictment for setting fire to a hay-stack, under 9 Geo. I, ch. 22, it is no answer to the charge that the prisoner had no malice or spite to the owner of the stack. In the case of the State v. Jackson, (12 Iredell’s Rep. 329,) was an indictment for malicious mischief. The court held the indictment bad, because it omitted the word ££ mischievously.” This may be required by the statute. It is no authority to say that such a word is necessary under the statute for killing, maiming, or wounding cattle. Nor do we think, in such indictments, it is at all necessary either to charge express malice against the owner of the cattle, or to describe the manner, mode, and instrument with which the offence was perpetrated.

That the word ££ cattle” may be so used by our legislature as to exclude the idea of horses, mares, colts, &c., we will not pretend to say; but that when used as it is in this 57th sec. of art. 3d of our Criminal Code, it embraces horses, mares, colts, &c., we think can not be for a moment doubted. One remark more about the malice in these case and I will have done. In the case of Bromage and another v. Prosser, (4 Barn. & Cress. 247; 10 Eng. Com. Law, 321,) Bailey, J., in delivering the opinion of the court, said: ££ Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle without knowing whose they are — if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act and done intentionally.” It would be well to notice the distinction between the common acceptation of the term malice and the legal sense of the same.

In this case, we consider the indictment substantially good, and that the court below erred in sustaining the defendant’s demurrer to it. The judgment of the circuit court is reversed, and this cause is remanded for further proceedings in accordance with this opinion.

Judge Leonard concurring; Judge Scott absent.


text:
    The State, Plaintiff in Error, v. Crenshaw, Defendant in Error.
    1. Buffaloes, although domesticated, are not “cattle” within section 57 of article 3, of the act concerning crimes and punishments, (ft. C. 1845, p. 364.)

      Error to Greene Circuit Court.

    The facts fully appear in the opinion of the court.

      Gardenhire, (attorney general,) for the State.

      Hendricks and Wright, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted for- killing feloniously, wilfully, unlawfully and maliciously one buffalo bull, a domesticated animal, of the value of fifty dollars, of the goods and chattels and property of Renjamin Canefox.

There were three counts in the indictment; in the first and second, the offence is not charged correctly; but in the third count it is.' The defendant appeared and moved to quash the indictment; the court sustained this motion, and the State excepted, and brings the case here by writ o£ error.

The third count of this indictment being considered sufficiently formal and substantially good, raises, before this court, the question, whether a buffalo bull was within the meaning of the legislature, when they used the word “ cattle,” in the 57th section of article 3, of statute of crimes and punishments, (R. C. 1845, p. 864,) or not. This section is as follows : “If any person shall wilfully and maliciously kill, maim of wound any cattle of another, he shall, on conviction, be punished,” &c. Here, the word is used by the legislature in the broadest sense — ■ cattle embracing horses, cows, sheep, mules, &c. In another section of the same statute, article 8, sec. 38, “Every person who shall maliciously and cruelly maim, beat or torture any horse, ox or other cattle, whether belonging to himself or another, shall, on conviction,” &c. We have no doubt that they meant to include horses under this general phase, cattle.

We do not think that the legislature meant to include buffaloes under the word “ cattle. ” Buffaloes are not cattle yet within the meaning of the statute; and the fact that this buffalo bull was tamed, if it be so, does not bring him within the provision of the law, and while his tribe is left out. Though it be admitted that persons may have buffaloes tamed and domesticated, may lawfully acquire property in them, and can maintain suits for injuries done them, or for the destruction of them, yet the courts must look to the general state of things and to the circumstances attendant on any general legislation, and give such construction to the words of the law as to enable them to embrace the ideas and notions and designs of the lawmakers. Although it may prove a loss to the owner, and is of itself a serious outrage, maliciously and wilfully to destroy a domesticated buffalo, yet we are inclined to the opinion that the legislature never meant to embrace those animals under the general word “ cattle.” A tame domesticated buffalo bull is not then under the provisions of this statute. He can not be brought within the provisions while his family is left out.

The judgment of the court must therefore be sustained;

Judge Leonard concurring.


text:
    The State, Defendant in Error, v. Ragan and another, Plaintiffs in Error.
    1. An indictment for abetting on an election, under section 27 of article 8 of the act concerning crimes and punishments, (E. C. 1845,) which charges that the defendant, on, &c., at, &c., did then and there unlawfully bet property of a specified value on the result of an election which was held in a certain congressional district, in this state, on a specified day of the year, between specified parties, who were then and there running as candidates to represent the state in congress, said election then and there being authorized by the constitution of the United States and by the laws of this state, is good.

      Error to Newton Circuit Court.

      J. W. Payne, for plaintiffs in error.
    The' indictment is defective in not charging that an election was held for the election of a member to congress, and that John S. Phelps and Waldo P. Johnson were then running as candidates for said election.
    Gardenhire, (attorney general,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

This was an indictment founded on the 27th section of the 8th article of the act concerning crimes and punishments. (R. C. 1845, p. 404.) The defendants appeared and moved the court to quash the indictment; which motion was overruled and excepted to, and saved by bill of exceptions. The defendants then pleaded not guilty — were tried and found guilty, and fined each one dollar. There is a motion on the record to arrest the judgment, which also was overruled. The defendants bring the ease here by writ of error, and'insist, by their counsel, that the indictment is insufficient.

The indictment is as follows : “ State of Missouri, county of Newton — In the Newton Circuit Court, October term, 1854. The grand jurors for the state of Missouri, empannelled, sworn and charged, &c., upon their oath, present that one Caleb Ragan and George W. Cornits, late of said county, heretofore, to-wit, &c., at, '&c., did then and there unlawfully bet an amount of property, to-wit : one pair of boots, of the value of five dollars, on the result of an election which was held in the sixth congressional district in the state of Missouri, on the first Monday in August, A. D. 1854, between one John S. Phelps and Waldo P. Johnson, who were then and there running as candidates to represent the said congressional district in the state of Missouri, in the congress of the United States of America ; said election then and there being authorized by the constitution of the United States of America, and by the laws of the state of Missouri, contrary,” &c.

The 27th section of article 8 of act concerning crimes and punishments, (R. C. 1845,) is as follows: “Every person who shall bet or wager any money or property or other valuable thing on the result of any election, authorized by the constitution or laws of the United States or of this state, or on any vote to be given at such election, or who shall knowingly become stake-holder of any such bet or wager, shall be punished by fine not exceeding fifty dollars.” We consider this indictment good; and that there is nothing in the objection taken to it by the counsel for the defendants. It substantially pursues the words in which the offence is described in the statute, and the court below very properly overruled the defendants’ motion to quash and in arrest.

Let the judgment be affirmed ;

Judge Leonard concurring.


text:
    The State, Respondent, v. Banfield, Appellant.

      t. An indictment for betting on an election, under section 27 of article 8 of the act concerning crimes and punishments, (R. C. 1845,) which charges that the election was for a probate judge of the county, and was held on a specified day, and was authorized by the laws of the state, is sufficient, the statute showing that the day named was the one fixed by law.,

      Appeal from Greene Circuit Court.

    No appearance for appellant.
    Gardenhire, (attorney general, for the State,)
    referred to R. O. 1845, p. 404, § 27, and Sess. Acts, 1847, p. 40, 41, 42, § 1 and 9.
   Ryland, Judge,

delivered the opinion of the court.

This was an indictment founded on the 27th section of the 8th article of the act concerning crimes and punishments, (R. O. 1845, p. 404.) The defendant is charged with betting a pair of boots with James Morrison, on the result of an election which was hodden on the first Monday in August, A. D. 1855, in the county of Greene and state of Missouri, for the office of probate judge, within and for said county; one James Dollison and George W. Mitchell being then. and there candidates for the said office of probate judge ; sai'd election being then and there authorized by the laws of the state of Missouri. The time charged in the indictment, when the bet was made, was the 25th July, 1855.

The defendant, Banfield, appeared and moved to quash the indictment: his motion w;as overruled. He then plead guilty and was fined ten dollars ly the court. He then moved in arrest of judgment, which being overruled, he appealed to this court and now insists upon the insufficiency of the. indictment. We think the indictment substantially good. The public law has created the office of probate judge for Greene county, and fixed the time for electing the probate judge. The first election for this office was held on the first Monday in August, A. D. 1847, and the elections are to take place every two years thereafter. Consequently, the first Monday in August, 1855, was the day for said election of probate judge for said county of Greene. The indictment charges that the said election was then and there authorized by the laws of the state of Missouri.

The indictment being good, the judgment of the court below must be affirmed ;

Judge Leonard concurring.


text:
    The State, Defendant in Error, v. York & York, Plaintiffs in Error.
    1. The constitutionality of a law establishing a new county can not be inquired into upon a motion to quash an indictment found in a court of such county. (State v. Rich, 20 Mo. 393, affirmed.)
    2. An indictment under the 37th section of the 2d article of the act concerning crimes and punishments, (R. C. 1845,) which charges that the defendants (Y. & Y.) “on, &c., at, &e., upon the body of one J. M. J., then and there being, and assault did then and there unlawfully and feloniously make, and the said Y. & Y., with sticks, rocks, stones and knives, then and there, being deadly weapons, &c., in and upon the head, face and body of him, the said J., then and there did assault and beat, with the intent him, the said J., then and there feloniously to kill, contrary,” &c., is good.

      Error to Dent Circuit Court.
    J. R. Arnold, for plaintiff in error.

      Gardenhire, (attorney general,) for the State.
   Ryland, Judge,

delivered tlie opinion of the court.

Tkis was an indictment for a felonious assault. Tke defendants appeared and pleaded not guilty. They were convicted and fined each the sum'of five hundred dollars. A motion for a new trial was made and overruled. A motion likewise in arrest of judgment was made and overruled. Exceptions were taken and the case was brought here by writ of error.

We have endeavored in vain to get such a record here as would enable us to see what was done in the Circuit Court. We see a line or two of the evidence put down in the record, in what we suppose was meant for a bill of exceptions ; but the clerk says this was not all the evidence; but he can not copy any more, because it was not saved or put down in writing. It is not the clerk’s duty to save the evidence. It is the duty of the party excepting, either the circuit attorney, or the defendant’s attorney.

There being here no evidence saved, it is not in our power to say whether the instructions were proper or not. Indeed we can not tell which were given or which refused. Some have marks near to them on the margin, thus, “ + others, the word “rejected” on the margin ; others, both the cross mark and the word “rejected.” But the record nowhere states which were given or which refused. The indictment is copied in the record some three or four times, in answer to the various writs of certiorari which were from time to time awarded, and the reasons in arrest of judgment are also very prominent in the various efforts to complete the record.

From the reasons in arrest of judgment, a very important item, one indeed which was, in all probability, the ruling cause of bringing the case before this ..court, is the unconstitutionality of the county of Dent. There is nothing on the record to raise or support this question, and it strikes us as a novel proceeding for any of the courts of this state to undertake to kill off any one of the counties of the state established by law, by a mere motion in arrest of judgment in a criminal case for a misdemeanor. (See the case of the State v. Rich & Rich, 20 Mo. 393.) The motion for a new trial, on account of newly discovered testimony, has nothing in it. ' The record nowhere shows what the newly discovered testimony is ; we therefore can not pass upon the action of the inferior court in overruling the motion. We have disposed of all the questions before us which we can see upon this record, except the sufficiency of the indictment. We will now consider this question. The indictment, in our opinion, is sufficient. The charges that Asa York and John York, both late of the county of Dent, on, &c., in and upon the body of one James M. Jones, then and there being, an assault did then and there unlawfully and feloniously make, and John York, with sticks, rocks, stones and knives, then and there being deadly weapons, &c., in and upon the head, face and body of him, the said Jones, then and there did assault and beat, with the intent him, the said Jones, then and there feloniously to kill, contrary, &c.

We think that this indictment is substantially good and sufficient. It is under the S7th section of the 2d article of the act concerning crimes and punishments. Here, the weapons used are averred to be deadly weapons ; the beating is alleged to have been done on the head, face and body, and done with the intent of feloniously to kill. Had the killing taken place here, a felony would have been committed. There is nothing then in the motion to arrest on account of the insufficiency of the indictment. (See Carrico v. State, 11 Mo. 599; Jennings v. The State, 9 Mo. 862; The State v. McGrath and others, 19 Mo. 678; Johnson v. The State, 7 Mo. 183.)

The judgment of the Circuit Court must be affirmed ;

Judge Leonard concurring.


text:
    The State, Respondent, v. Slater, Appellant.
    1. A married woman, who has been abandoned by her husband for five years, may properly be charged as the head of the family whose peace is disturbed, in an indictment under section 15 of article 7 of the act concerning crimes and punishments (R. G. 1845).

      tftppeal from Newton Circuit Court.

    The case is stated in the opinion of the court.
    Hendrick, for appellant,
    insisted that there was a variance between the indictment and proof.

      Gardenhire, (attorney general,) for the State,
    that there was no variance, cited 8 Humph. 216 ; 17 Ala. 486 ; 20 Mo. 75; R. O. 1845, p. 478, § 13.)
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted in the Newton Circuit Court for disturbing the peace of the family of Mary Riggs.

The defendant appeared to the indictment, and upon the trial thereof the State gave evidence “ that the defendant, about the 26th or 27th July, 1854, in the night time, disturbed the peace of Mary Riggs and her children, residing and being with her in the said house, for which family she had provided and acted as head of the family since the desertion and absence of her husband, by there making loud and unusual noise, loud and indecent conversation, and by threatening to kill her s.on, Ira Riggs, and that he would spill his blood in the yard and that he would have satisfaction for the money he had to pay by the proceedings of Ira Riggs had against him, by spilling his blood in her sight. It was also proved that Mary Riggs was a married woman ; that her husband had not lived with her for the last five years ; that some five years ago he left her, and took up with another woman and went off — had been seen in the neighborhood some two and a half years since, but had not been heard of since then; she never expected him to return, and if he did return she did not expect to live with him again.

The defendant objected to this evidence as not proper to go to the jury, and moved the court to exclude it from the jury. The court overruled this motion, and permitted the evidence to go to the jury. The defendant excepted, and after a verdict of the jury finding him guilty, he moved for a new trial, which being denied, he brings the case here by appeal.

The only question for our consideration is, was the evidence proper and legal to go before the jury ? The 15th section of the 7th article of the act concerning crimes and punishments, (R. C. 1845, p. 396,) declares that “If any person or persons shall, in the night time, wilfully disturb the peace of any neighborhood, or of any family, by loud and unusual noise, loud and offensive or indecent conversation, or by threatening, challenging or fighting, every person so offending shall, upon convection, be adjudged guilty of a misdemeanor, and be punished,” &c. The indictment charges that the defendant did, in the night time, with force and arms, unlawfully and wilfully disturb the peace of the family of Mary Riggs, by then and there making loud and unusual noise, &c. The family disturbed was charged to be the family of Mary Riggs. The defendant objected to the evidence, because it shows Mary Riggs was a married woman, and therefore it was not her family, but the family of her husband. We think the court properly admitted this evidence, and that the family was properly described as being the family of Mary Riggs. Her husband had abandoned her — taken up with another woman, and had gone off— had left her five years before. She had her house and her children living with her ; she provided for them. Now, beyond doubt, this was a family. Now who was its head ? The evidence showed that Mary Riggs had her children residing and being with her in the house, around which the disturbance was made ; that she had provided and acted as the head of the family since the desertion and absence of her husband. Can there be a doubt, then, but she was the head of the family? We think not. She being the head of the family, it was properly described as her family, and.the evidence was properly admitted. He who supervises, controls and manages the-affairs about a house is the head of a family. A constable in the township where Mary Riggs lives, with an execution against her, would not have doubted for a moment that she was the head of a family. (Wade v. Jones, 20 Mo. 75, and authorities therein cited on this subject.) The judgment below must be affirmed ;

Judge Leonard concurring.


author: Leonard, Judge,

text:
    The State, Plaintiff in Error, v. Zwifle, Defendant in Error.
    1. A criminal recognizance taken by a county court, as such, must be certified under the seal of the court. If taken by the judges, as magistrates, it must be certified by them, and not by the clerk-of the court.

      Error to Cooper Circuit Court.

      Scire facias upon a recognizance. The defendants pleaded mil tiel record. At the hearing,- the State offered to read in evidence a recognizance' signed by the defendants, purporting to have been taken in the Cooper county court, conditioned for the appearance of one of them at the next term of the Circuit Court, to answer such indictment as. might be preferred against him for burglary, and that he should not depart without leave.
    The only certificate to the recognizance was one signed by the clerk, without the seal of the court. The Circuit Court excluded this evidence, and no other being offered, gave judgment for the defendants. The State brings the case here by writ of error.
    Gardenhire, (attorney general,) for the State.
    Adams, for defendants in error,
    referred to 4 Bouvier’s Inst. 95, 96, 97; Todd & Means v. The State, 1 Mo. 566; 1 Bouvier’s Inst. 342-3 ; R. C. 1845, p. 893. § 14, p. 862, §36.
   Leonard, Judge,

delivered the opinion of the court.

We had occasion, in the case of the State v. Randolph, (see p. 474) decided at the present term, to consider somewhat at large the doctrine in reference to criminal recognizances ; and, referring to the opinion in that case, shall proceed at once to state the ground.upon which we think the present judgment must be affirmed. We then remarked that, “ at common law, the obligation (of a recognizance) was created by the mere verbal acknowledgment of the party, which the law entrusted the court or officer with the duty of taking, and certifying to the proper court; but our statute (R. C. 1845, chap. 188, art. 9, § 14) has altered this, and, for the better security of the party against mistake or design, has required all recognizances, taken in open court, to be entered on the minutes of the court, and the substance to be read to the party ; and in all other cases, when taken out of court, by any person authorized thereto, to be in writing, and signed by the persons to be bound. Of course, the party is bound as soon as the obligation is entered into in the form prescribed; but if it be taken by an officer, or by another court, it must be certified and filed in the court where the party is bound to appear, in order to render it complete and make it effectual.” And then we held that, if it were imperfectly certified, the defect might be amended at any time before the objection was disposed of. The question here is, whether the recognizance was sufficiently certified to the Cooper Circuit Court, so as to entitle the state to execution upon it; and we think that it was not — whether it be considered as a recognizance taken in the Cooper county court, or as one taken by the judges of that court. In the first case, it should have been certified under the seal of that court, as that is the only mode in which a court o£ record can authenticate its acts ; and the duty of the clerk (R. C. 1845, chap. 188, art. 2, § 36) was to transmit the recognizance, not to authenticate the act by his signature merely. Upon the other supposition, that it was the act of the individual judges, as magistrates, and not as a court, it should have been authenticated as such by their own certificate, and not by the certificate of another; so that, “ quacunque via data, ” the recognizance was insufficiently certified, and the judgment must therefore be affirmed.

Judge Ryland concurring,

judgment affirmed.


author: Scott, Judge, Ryland, Judge.

text:
    The State, Defendant in Error, v. Levens, Plaintiff in Error.
    1. An indictment of a road overseer for failing to keep his road in repair, under the act concerning roads and highways, (R. C. 1845,) must state, in terms or in substance, that the failure was wilful.

      Error to Morgan Circuit Court.

    Indictment of a road overseer for not keeping his road in repair. The indictment charged that the defendant, “ on, &c., in the county of Morgan aforesaid, was overseer of road district number fifteen, in said county, on the road leading from the first branch beyond Joshua Self’s to the cross street in the town of Florence, duly appointed and notified thereof, and the said road district was then and .there obstructéd by trees and limbs of trees, which then and there incommoded horsemen and carriages, and there were then and there stumps therein, exceeding eight inches in height, and wet ground and small water courses not causewayed or bridged in such a manner as to enable horsemen and carriages to pass with safety; and so the jurors aforesaid, upon their oath aforesaid, do say, that said road district was not then and there kept in repair according to law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

      F. P. Wright, for plaintiff in error.

      Gardenhire, (attorney general,) for the State.
   Scott, Judge,

delivered the opinion of the court.

This was an indictment against the defendant as road overseer, for failing to keep the road district of which he was overseer in repair. The defendant was convicted, and made a motion in arrest of judgment, which being overiuled, he sued out this writ of error. , ' .

This indictment is founded on the act for opening and repairing public roads and highways. (R. O. 1845, p. 960.) The 62d section of this act provides that, “ if any road overseer shall wilfully fail or neglect to keep his road in good repair, &c., he shall forfeit and pay the sum of ten dollars.”

The indictment does not charge that the overseer wilfully failed to keep his road in repair. Indictments must pursue the words of the statute on which they are founded. This is a well established principle in our code of criminal procedure.

Judge Ryland concurring,

the judgment will be reversed;

Judge Leonard absent.

Ryland, Judge.

The indictment is insufficient; it does not charge the offence in the words of the statute, nor in words of similar import, nor in words substantially of the same meaning.