State v. Cheek , 63 Mo. 364 ( 1876 )

Wagner, Judge,

delivered the opinion of the court.

This was an indictment against the defendant, who was agent of an express company, for embezzlement. He was convicted, and it is urged that there was no evidence of any crime having been committed, but the confessions of the defendant himself. But this was a mistake. A witness testified that he gave the money to the defendant to be transmitted by express, and that it never reached its destination, and that defendant admitted that he converted and appropriated it to his own use. All these facts, taken together, constituted ample evidence on the subject.

The incorporation of the company was proved by parol, and it is objected that the evidence 'was inadmissible, because better evidence was attainable.

- Our statute provides that, "if, on the trial or other proceeding in a criminal case, the existence, constitution or powers of any banking company or corporation, shall become material, or be in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute_book of the State, government or country by which such corporation was created.”

Under this provision of the statute the court did right in overruling the objections, and the admission of the evidence was not error.

The instructions for both the State and the defendant were unobjectionable, and submitted the case with unquestionable fairness.

The defendant filed a plea in abatement, in which it was alleged that the grand jury had found a second or subsequent indictment for the same offense described in the first indictment, and upon which he was held for trial, and therefore asked that the first indictment might abate. This plea was overruled.

The statute respecting criminal practice declares, that “ if there be, at any time, pending against the same defendant two indictments for the same offense, or two indictments for the same matter. although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.” (Wagn. Stat. 1087, § 4.)

In the case of Austin vs. The State (12 Mo. 393) it was held that a plea in abatement to an indictment, alleging the pendency of another indictment for the same offense, should specifically show that the indictment pleaded to was the first found, and that the offensive act charged in each indictment was the same.

Tested by this rule, the plea in this case was sufficient. It set out with precision, by direct averment, that the matters charged in each indictment were identical and the same.

The record is fatally defective. It does not show that the prisoner was ever arraigned, or that any plea was ever entered in his behalf, or that any issue was made at the trial. Nor does it show that he was present in court during the progress of the trial.

' Wherefore the judgment must be reversed and the cause remanded.

The other judges concur.