Honey v. Kaiser

• Decision Date: 12 June 1944
• Docket Number: 39149
• Citation: 181 S.W.2d 492,352 Mo. 1120
• Parties: Frank Honey, Petitioner, v. Paul E. Kaiser, Warden, Missouri State Penitentiary
• Court: Missouri Supreme Court

181 S.W.2d 492

352 Mo. 1120

Frank Honey, Petitioner, v. Paul E. Kaiser, Warden, Missouri State Penitentiary

No. 39149

Supreme Court of Missouri

June 12, 1944

Habeas Corpus.

Petitioner remanded to custody.

Roy McKittrick, Attorney General, and Robt. J. Flanagan Assistant Attorney General, for respondent.

OPINION

Tipton J.

Habeas Corpus: On September 17, 1943, petitioner pleaded guilty to "breaking jail," while awaiting trial upon a criminal charge, and was sentenced to imprisonment in the penitentiary for a period of two years. He contends that the information charging him with this offense is fatally defective for the reason that it failed to state the day, month, or the year when he is alleged to have committed this offense; or, to state his contention another way, since no date of the alleged crime is laid in the information, it fails to show that crime is not barred by the statute of limitations, which is Section 3782, R.S. Mo. 1939.

To sustain his contention that the circuit court was without jurisdiction to pass sentence upon him, petitioner relies upon the case of Ex parte Sydnor, 222 Mo.App. 798, 10 S.W.2d 63, an opinion by the St. Louis Court of Appeals. In that case, the information "did not at any place either in the body of the information or elsewhere charge that the offense was committed on a certain day, month, or year leaving the time absolutely blank, except as follows: 'A.D., 19 .'" That court held the information insufficient to sustain a plea of guilty and discharged the petitioner. In ruling the case, that court said, ". . . the information or indictment must always, whether time be of the essence of the offense or not, state in some manner that the crime is charged as having been committed within the period so as to avoid the operation of the bar of the statute. If the information, though omitting the day and month, yet showed the year or a period within a year, it would be sufficient, since it would show that the prosecution is not barred."

We are of the opinion that case should be overruled, for the reason that it fails to give effect to our statute of jeofails Section 3952, R.S. Mo. 1939, which, in part, reads: "No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: First, . . . fourth, . . . nor for omitting to state the time at which the offense was committed,...