W. L. & G. Vaughn v. State of Missouri, 4 Mo. 530

Statement of the 'case made, and opinion delivered by Tompkins, Judge. -Wm. L. and George Yaughn were indicted for selling goods at auction without a license, and being found guilty, they moved in arrest of judgment. Their ’ motion' was overruled, and a judgment entered up against them. Tó reversé thát judgment, they sued out their writ of error, and have brought up the cause to this court. For the plaintiff in error, it is contended, 1 st. That the indictment is bad for want of an oath to the jurors. 2d. The indictment is bad under the statute. 1st. Because it does not pursue the language'of the statute. 2.

Because it does not mention all' tlie circumstances contained in the statutory definition of the offence. 3d. Because the defendants are indicted for a joint of-fence, and the judgment is joint: whereas each is responsible for himself. 1st. That the indictment is bad for want of an oath to the jurors. The indictment runs thus: “The, grand jurors for the State of Missouri, empannelled, sworn and charged, to inquire in and for the body of the county of Pike, &c.” It was contended in argument, that it did not appear from the indictment that an oath was administered in the and at the time, &c.

And this is probably what counsel meant by saying, the indictment was bad want of an oath to the jurors. The authority cited from Johnson’s cases, in the supreme court of thq State of N. York, does not appear to be in point. In that case the defendant was convicted at the general sessions of'the peace of the county where the offence was charged to commi^e¿. au¿ the nisiprius system being adopted in New York as in England, it will become necessary to state in the indictment that the oath was wen and there administered.

In ’ our State, judgment iá entered up against the accused in the circuit court, where his conviction took place. And it does not become necessary to inform the court that its own juiy was jsworn in the county at the time, &c. That court is bound to take notice of its own proceedings. | An indictment charging that defendants“did nes's of a^uhlic auctioneer, and then and there auctfoneer^S&c°.” pursues the essential descriptive words of the statute, and is good. 2d. That the indictment does not pursue the language of the statute.

The indictment charges that the defend-exercise the business of a public auctioneer, and did then and there as such auctioneers sell goods, &c. having no license do so. It is contended that the indictment should have pursued more strictly the I words of the law. The first

section runs thus: “No person shall exercise the trad© or business of a public auctioneer by selling goods or other property, subject to duty under the law, &c.” It was insisted that the indictment should have charged that defendants exercised the trade or business of a public auctioneer by selling goods, &c. not subject to duty. Reference is made to 253d page of Star-kie’s criminal treaties, where a dictum oí Mr. Justice Foster is said to be overruled. In his report of the case the King v.

McDaniel and others, he says in the case cited, the indictment was holden to be sufficient, though the words of the statute of Phillip ahd Mary, were not pursued. The words “excitavit m'ovii et jprocwravif' being deemed tantamount to “counsel hire or command.” Mr. Justice Foster says: I take this to be good law, though I confess it is the only precedent I have met with where the words of the statute have been wholly dropped.

The case before us is an indictment for a misdemean- or, and the words of the statute are not wholly dropped, as in the case cited by Foster, but the words of the legislature, defining the offence, are carefully preserved, and attended t® in the description of the offence. The indictment charges most positively, that they sold goods, &c. in the words of the statute; and if it had been true that these goods were not subject to duty, on account of any saving or proviso in the statute, the defendants might have pleaded it — see 3 Bac. abrid. 570.

It is error to charge two persons with jointly exercising the trade of an auctioneer. In the third point made by the defendants we find more Weight. It appears to us, upon mature consideration, that two persons can no more be jointly guilty of exercising the trade or business of an auctioneer without license, than they could be jointly guilty of speaking slanderous words. For this, reason, we tnink the indictment is bad, and the judgment of the circuit court ought to have been arrested. The judgment is therefore, reversed.