State v. Settle

Decision Date17 February 1932
Docket NumberNo. 31442.,31442.
Citation46 S.W.2d 882
PartiesTHE STATE, Plaintiff in Error, v. C.W. SETTLE.
CourtMissouri Supreme Court

Stratton Shartel, Attorney-General, C.A. Powell, Assistant Attorney-General, and Franklin E. Reagan, Prosecuting Attorney, for plaintiff in error.

(1) Although it has been held that a motion to quash an indictment or information is not a part of the record proper, and when sustained and the State appeals, it must file a motion for a new trial and set out the motion to quash and motion for new trial and the rulings thereon in the bill of exceptions, in order to properly present the matter for review, State v. Sollars, 200 S.W. 1052; State v. Miller, 307 Mo. 372; State v. McKay, 225 Mo. 540; State v. Fraker, 137 Mo. 258, such a holding is no doubt attributed to the fact that a motion to quash is not limited to matters on the face of the information or indictment. It embraces many other questions which require extraneous proof, and as to such matters, these cases are therefore correct. All the above cases were decided before the statute was amended in 1925. The amendment no longer provides for an appeal by the State when a motion to quash is sustained. It provides for an appeal when an information is held insufficient on demurrer or exception. Sec. 3753, R.S. 1929. (2) In this case the motion to quash is in effect a demurrer. When a pleading operates as a demurrer, and it is sustained, then it can be treated as such, and the party appealing or suing out writ of error does not have to file a motion for a new trial and does not have to file a bill of exceptions. The pleading and the ruling thereon in such cases are part of the record proper. Home Ins. Co. v. Power & Light Co., 39 S.W. (2d) 1039; Dickey v. Webster County, 318 Mo. 820, 300 S.W. 1086; Ewing v. Vernon County, 216 Mo. 686; State v. Martin, 230 Mo. 9; State v. Earll, 225 Mo. 537. (3) The information fairly advises the defendant of the nature and cause of accusation, and is therefore sufficient. State v. Adams, 300 S.W. 738, 318 Mo. 712. (4) The information charges only one offense. The offense is of statutory origin. Secs. 4199 and 5357, R.S. 1929. The statutes set out all the elements constituting the offense, and the information charges the offense in the language of the statute, and is therefore sufficient. State v. Toombs, 25 S.W. (2d) 101; State v. Moore, 279 S.W. 134, 311 Mo. 531; State v. Anderson, 250 S.W. 68, 298 Mo. 382; State v. Hilton, 248 Mo. 522; State v. Nash, 222 S.W. 396, 283 Mo. 32. (5) It is not necessary that the exceptions and provisos mentioned in (a) to (f) inclusive of par. 1 of Sec. 5357, R.S. 1929, be pleaded in the information. Where there are exceptions negativing guilt all such exceptions must be pleaded in the information, where they occur as parts of the statutory definition of the offense, in all cases where, if such exceptions were admitted, the offense cannot be accurately described. But where such exceptions are not part of the statutory definition of the crime; or where they are contained in distinct and inedpendent clauses of the statute, or in separate sections, it is not usually necessary to plead or prove them. They are in such cases matters of affirmative defense. State v. DeGroat, 259 Mo. 375; State v. Brown, 267 S.W. 864; State v. Bockstruck, 136 Mo. 335. (6) The State may sue out writ of error after defendant is discharged. State v. Carson, 18 S.W. (2d) 457; Secs. 3755, 1036, R.S. 1929.

Clark, Boggs, Cave & Peterson and Ruby M. Hulen for defendant in error.

(1) The appeal by writ of error should be dismissed. (a) A motion to quash an indictment or an information is not a part of the record proper, and the motion, ruling thereon and exceptions to rulings thereon, must be properly preserved in a bill of exceptions in order that the ruling may be for review in this court. State v. Frey, 289 S.W. 911; State v. Miller, 270 S.W. 293; State v. Sollars, 200 S.W. 1052; State v. Humfeld, 253 Mo. 340; State v. Finley, 234 Mo. 603; State v. McKay, 225 Mo. 544; State v. Coleman, 199 Mo. 112; State v. Finley, 193 Mo. 211; State v. Fraker, 137 Mo. 258; State v. Tooker, 188 Mo. 444; State v. Cowan, 146 Mo. App. 621; State v. Henderson, 109 Mo. 292; State v. Vincent, 91 Mo. 662; State v. Thurston, 83 Mo. 271; State v. Gee, 79 Mo. 313; State v. Batchelor, 15 Mo. 208; State v. Fortune, 10 Mo. 466. (b) Defendant's motion was a motion to quash. Motions in like language, purpose and result have many times been so held by this court. State v. Sollars, 200 S.W. 1052; State v. Humfeld, 253 Mo. 340; State v. Finley, 234 Mo. 603; State v. McKay, 225 Mo. 544; State v. Coleman, 199 Mo. 117; State v. Cowan, 146 Mo. App. 222; State v. Thurston, 83 Mo. 271. (c) The copying of the different motions to quash into the transcript certified to this court and the rulings thereon, do not make them a part of the record in a legal sense. State v. McKay, 225 Mo. 544; State v. Tooker, 188 Mo. 544; State v. Fraker, 137 Mo. 259. (d) The Amendment of 1929, Sec. 3753, R.S. 1929, did not change the prior law and relieve appellant from duty of excepting and preserving exception to adverse ruling. State v. Frey, 289 S.W. 912. (e) The record is not the place for lodgment of exceptions to adverse rulings. State v. Miller, 270 S.W. 293. (f) Rules with reference to examination of record entries and matters of exceptions in civil cases have no application in criminal cases. State v. Kaiser, 300 S.W. 716. (g) The State cannot appeal from final order discharging the defendant in a criminal case. (2) The trial court properly sustained defendant's motion to quash. (a) The indictment is defective in that it does not plead sufficient facts to charge an offense under the law, it appearing on the face of the charge that the loan described was not in excess of ten per cent of the paid-up capital and surplus of the bank. (b) The information and indictment are so indefinite and uncertain that they do not inform the defendant of the offense purported to be charged or the manner and form in which the same is alleged to have been committed. (c) If the indictment or information is founded upon subsection 8 of Sec. 5357, R.S. 1929, then there is no charge of any criminal offense under the law. State v. Lloyd, 7 S.W. 346. (d) If the indictment or information is founded upon subsection 1, Sec. 5357, R.S. 1929, then the information fails to make the necessary allegations to charge an offense.

FITZSIMMONS, C.

Defendant was indicted by the grand jury of Boone County, October 14, 1930, on the charge of having made an excessive loan in his capacity as cashier of a bank. Section 4119, Revised Statutes 1929, makes it a felony for any officer, director, agent, clerk or employee of any bank, to make any loan in excess of the amounts set out in Section 5357, Revised Statutes 1929, of the banking laws. The State proceeded against defendant under these sections. The trial court, by one final judgment, entered October 14, 1930, sustained defendant's motion to quash the indictment, gave the prosecuting attorney leave to file an information in lieu of the defective indictment, sustained defendant's motion to quash the information and discharged defendant. The State did not take or save exceptions to the final judgment, and did not file any motion for a rehearing or new trial. But, on January 16, 1931, the prosecuting attorney, on behalf of the State, filed his affidavit for appeal and an appeal to this court was allowed. No bill of exceptions was filed. On motion of the State, this court on August 10, 1931, dismissed the State's appeal. On August 18, 1931, the State sued out of this court a writ of error directed to the court below, returnable to our October, 1931, Term. The case is before us upon the record sent up by way of return to the writ of error and the motion which defendant in error has filed in this court to dismiss the proceedings.

I. Defendant's motion to dismiss the appeal by writ of error first must be ruled. In support of this motion defendant sets up that a motion to quash an indictment or an information is not a part of the record proper and therefore the Record Proper: motion itself, the rulings thereon and Motion to Quash. exceptions to these rulings must be preserved by a bill of exceptions; that the State in this case did not file a bill of exceptions or take or preserve any exceptions to the rulings of the court, and that therefore the action of the court below upon the motion to quash is not before us for review. A further ground of the motion of defendant in error to dismiss the appeal by writ of error is that the court below entered a final judgment discharging the defendant. In this connection the motion of the State to dismiss its original appeal by which it first brought this action to this court gave as the reason for the motion that defendant was discharged and final judgment was rendered before the appeal was attempted to be taken, and therefore the State was not entitled to take an appeal under the decision of this court in the case of State v. Carson, 323 Mo. 46, 18 S.W. (2d) 457. The proceeding by writ of error followed.

By a long line of decisions, having their beginning in 1847, this court uniformly has held that a motion to quash an indictment or information is not part of the record proper, and therefore such a motion only can become part of the record by its inclusion in a proper bill of exceptions. [State v. Fortune & Hannan, 10 Mo. 466 (1847); State v. Batchelor, 15 Mo. 207 (1851); State v. Wall, 15 Mo. 208 (1851); State v. Gee, 79 Mo. 313. Later cases are: State v. Vincent, 91 Mo. 662, 4 S.W. 430; State v. Fraker, 137 Mo. 258, 38 S.W. 909; State v. Wilhoit, 142 Mo. 619, 44 S.W. 718; State v. Tooker, 188 Mo. 438, 87 S.W. 487; State v. Finley, 193 Mo. 202, 91 S.W. 942; State v. Coleman, 199 Mo. 112, 97 S.W. 574; State v. Finley, 234 Mo. 603, ...

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7 cases
  • State v. Settle
    • United States
    • Missouri Supreme Court
    • February 17, 1932
  • State v. Reask
    • United States
    • Missouri Supreme Court
    • November 14, 1966
    ...in order that defendant may properly be apprised of the offense charged. State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198; State v. Settle, 329 Mo. 782, 46 S.W.2d 882; State v. Fox, Mo., 46 S.W.2d 544; State v. Barr, 326 Mo. 1095, 34 S.W.2d 477. The indictment does, however, substantially cha......
  • State v. Virdure
    • United States
    • Missouri Supreme Court
    • October 14, 1963
    ...if they are not repugnant, 'else it will be ill as being uncertain.' State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198; State v. Settle, 329 Mo. 782, 46 S.W.2d 882; State v. Fox, Mo., 46 S.W.2d 544; State v. Barr, 326 Mo. 1095, 34 S.W.2d 477. In the one cited case most directly in point with d......
  • State v. Skaggs, 42958
    • United States
    • Missouri Supreme Court
    • May 12, 1952
    ...v. Abbott, Mo.Sup., 236 S.W.2d 592, 594[2, 3]; State v. Pippey, 335 Mo. 121, 126[1, 2], 71 S.W.2d 719, 721[2-4, 5-7]; State v. Settle, 329 Mo. 782, 786, 46 S.W.2d 882, 883. But more important, their inclusion, even if properly so, in the record before us presents nothing for review. This, f......
  • Request a trial to view additional results

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