The State v. Barnes

• Decision Date: 13 March 1920
• Citation: 220 S.W. 848,281 Mo. 514
• Parties: THE STATE v. EARNEST HOWARD BARNES, Appellant
• Court: Missouri Supreme Court

220 S.W. 848

281 Mo. 514

THE STATE v. EARNEST HOWARD BARNES, Appellant

Supreme Court of Missouri, Second Division

March 13, 1920

Appeal from Newton Circuit Court. -- Hon Charles Henson, Judge.

Reversed and remanded.

M. E Benton and Horace Ruark for appellant.

(1) The information is bad in that everything charged in the information may be true and the defendant still not guilty of any offense. He might have been over sixteen and under seventeen years of age at the time of the alleged crime. State v. Wade, 267 Mo. 256; State v Bengsch, 170 Mo. 104; State v. Thieraup, 167 Mo. 429; State v. Hogan, 164 Mo. 654; State v Buster, 90 Mo. 518; State v. Timeus, 232 Mo. 184; State v. Phelan, 159 Mo. 122; State v. Holden, 48 Mo. 93; State v. Hesseltine, 130 Mo. 468; State v. Evers, 49 Mo. 542; 2 Bishop, Criminal Procedure, sec. 818; Schramm v. People, 220 Ill. 16; Hubert v. State, 74 Neb. 220. It is the cardinal rule of criminal pleading, that in an indictment or information for felony, the information must charge every essential fact constituting the offense with certainty. Nothing can be left to intendment or implication. State v. Timeus, 232 Mo. 177; 1 Bishop's Criminal Procedure, sec. 81; State v. Rector, 126 Mo. 340; State v. Ferguson, 152 Mo. 92; State v. Hall, 130 Mo.App. 174; State v. Basket, 52 Mo.App. 389; State v. Sparrow, 52 Mo.App. 374; State v. Raymond, 54 Mo.App. 425. This defect in the information is not cured by the Statute of Jeofails. State v. Meek, 70 Mo. 358; State v. Cline, 264 Mo. 416; State v. Woodward, 191 Mo. 631; State v. Blan, 69 Mo. 317; State v. Green, 111 Mo. 588. (2) The court erred in refusing to permit the defendant to re-examine the witness Lee Boydston as to matters brought out by the State in cross-examination. State v. Coats, 174 Mo. 423; 14 Ency. Evidence, 619; 8 Ency. Pleading and Practice, 124-125.

Frank W. McAllister, Attorney-General, Lewis H. Cook, Special Assistant, for respondent.

(1) The information follows the approved form of this court in all material matters with one exception. State v. Perrigan, 258 Mo. 233. (2) The information was drawn under Sec. 4472, R. S. 1909, and reads in part that "he, the said Earnest Howard Barnes, being then and there over the age of sixteen years," etc. The carnal knowledge occurred on February 25, 1917. The Laws 1913, p. 219 (approved March 25, 1913), amend Sec. 4472, R. S. 1909, so that this part of the information should have read "over the age of seventeen years." The evidence conclusively shows by the testimony of the mother of the defendant and other witnesses that he was nineteen years old at the time of the carnal intercourse alleged. So this erroneous averment as to the statutory minimum does not prejudice defendant in any wav. State v. Allen, 267 Mo. 49; State v. Volz, 190 S.W. 307. (3) The defendant was charged with carnal knowledge of a woman between the ages of fifteen and eighteen years of age and convicted of this charge. The record shows that when sentence was pronounced defendant was sentenced to the penitentiary not for the carnal intercourse of which he had been convicted, but for seduction. Unless it can be said that carnal knowledge, statutory rape and seduction can be used synonymously the case should be reversed and remanded. In the case of State v. Weber, 272 Mo. 475, appellant was charged under Sec. 4472, R. S. 1909, as amended by Laws 1913, p. 219, with carnally knowing a woman between fifteen and eighteen years of age and a general verdict was returned finding defendant guilty as charged, etc. The opinion states that the information charges statutory rape. The material elements of the crime are identical and so it is in seduction. While the sentence is not strictly in accord with the verdict the departure is one of language merely. If this contention is not well taken, we concede, by the authority of State v. Duff, 253 Mo. 415, 423, that this is no judgment. If so, we respectfully ask that the court reverse the case and remand it back to the Newton County Circuit Court in order that the defendant may be properly sentenced.

RAILEY, C. White and Mozley, CC., concur.

OPINION

RAILEY, C. --

On October 9, 1918, the prosecuting attorney of Newton County, filed in the circuit court of said county, an information, which, without formal parts, reads as follows:

"Now comes Leo H. Johnson, Prosecuting Attorney within and for the County of Newton in the State of Missouri, under his oath of office and upon his information and belief and upon the duly verified affidavit of Edith J. Cherry, informs the court and presents and charges to the court that:

"Earnest Howard Barnes, on the 25th day of February, A. D. 1917, at the County of Newton and State of Missouri, did unlawfully and feloniously make an assault upon one Edith J. Cherry, he, the said Earnest Howard Barnes, being then and there a person over the age of sixteen years, and she, the said Edith J. Cherry, being then and there an unmarried female of previous chaste character and between the ages of fifteen and eighteen years of age, to-wit, of the age of fifteen years; and her, the said Edith J. Cherry, he, the said Earnest Howard Barnes, did then and there unlawfully and feloniously have carnal knowledge of abuse contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

On October 14, 1918, defendant waived formal arraignment and entered his plea of not guilty. The case was tried before a jury on February 28, 1919, and on said date the following verdict was returned:

"We, the jury, find the defendant guilty and assess his punishment at 2 years in the penitentiary."

Defendant, in due time, filed his motions for a new trial and in arrest of judgment. Both motions were overruled, sentence pronounced on defendant, and judgment entered on the verdict aforesaid.

In due time and form, defendant was granted an appeal to the Supreme Court.

His counsel have filed a brief in this court, the first page of which, contains the following:

"The evidence shows the usual contradiction of testimony. The prosecuting witness, Edith Cherry, affirming and the defendant denying the act of intercourse. The evidence is sufficient to sustain the verdict of the jury, and the appellant makes but two contentions upon this appeal. First: That the information is bad; and second, that the court erred in refusing to permit the re-examination of a witness, Lee Boydston."

The evidence of the State tends to show that the sexual intercourse complained of occurred in Newton County, Missouri, on February 25, 1917; that Edith J. Cherry, the prosecutrix, was then over fifteen years of age and under eighteen years of age; that she had never had sexual intercourse with any one prior to said date; that as a result of the above act of sexual intercourse, the prosecutrix, on November 24, 1917, gave birth to a baby girl; that the defendant was the father of said child; that defendant on said 25th day of February, 1917, was over the age of seventeen years; that prosecutrix was an unmarried female at the time of trial, and had never been married.

The evidence of defendant tended to contradict that of respondent, except as to defendant's age. Appellant likewise offered testimony tending to show that prior to February 25, 1917, the reputation of the prosecutrix in that neighborhood for chastity, was bad. He likewise offered testimony tending to show that on February 25, 1917, he was in Oklahoma, etc.

Appellant, in his abstract of the record, says: "As no question is raised by the defendant as to the giving or refusing of instructions, they are not set out herein."

We have examined the instructions given by the court and find that they fairly, correctly and fully cover all the issues in the case.

Such other matters, appearing of record, as may be necessary, will be considered in the opinion.

I. Appellant, in his motion in arrest of judgment, as well as in his brief on file here, challenges the sufficiency of the information heretofore set out. As the act complained of, is said to have occurred on February 25, 1917, the validity of the information will have to be determined under Section 4472, Revised Statutes 1909, as amended by the Act of 1913, Laws of 1913, at pages 218-9, which reads as follows:

"If any person over the age of seventeen years shall have carnal knowledge of any unmarried female of previous chaste character, between the ages of fifteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term not exceeding five years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one month nor more than six months, or by both such fine and imprisonment, in the discretion of the court."

In passing upon the validity of foregoing information, we should keep in mind Section 22 of Article II. of our Constitution which provides, among other things, that in criminal prosecutions the accused shall have the right, "to demand the nature and cause of the accusation." In other words, it provides, that the information shall specifically bring the defendant within all the material words of the statute, for it is the inflexible rule in criminal pleading that, in all indictments or informations for felonies, nothing can be left to intendment or implication. [State v. Wade, 267 Mo. 249, 183 S.W. 598; State v. Timeus, 232 Mo. 177, 135 S.W. 26; State v. Keating, 202 Mo. 197, 100 S.W. 648; State v. Birks, 199 Mo. 263, 97 S.W. 578; State v. Meysenburg, 171 Mo. 1, 71 S.W. 229; State v. Thierauf, 167 Mo. 429, 67 S.W. 292; State v. Hagan, 164 Mo. 654, 65 S.W. 249; State v....