State ex rel. Henry v. Allen

• Decision Date: 05 June 1924
• Docket Number: 25272
• Parties: STATE ex rel. HENRY v. ALLEN et al
• Court: Missouri Supreme Court

263 S.W. 190

STATE ex rel. HENRY v. ALLEN et al

No. 25272

Supreme Court of Missouri, Second Division

June 5, 1924

Fogle & Fogle, of Lancaster, and Claude C. Fogle, of Memphis for petitioner.

Chas L. Moore, Pros. Atty., and Jayne & Jayne, all of Memphis for respondents.

Petition for Writ of Certiorari.

OPINION

RAILEY, C.

This is an application by petitioner, Noah Henry, for a writ of certiorari to quash the record of the St. Louis Court of Appeals in the case of State of Missouri, Respondent, v. Noah Henry, Appellant, formerly pending in said court on an appeal from the judgment of the Scotland county circuit court, in a criminal proceeding therein, in which said Henry was convicted of a common assault, fined $ 25, and appealed from the judgment against him to the Court of Appeals aforesaid, where said judgment was affirmed.

Omitting the formal matters, the Court of Appeals sets out the indictment of the Scotland circuit court, as follows:

'The grand jurors of the state of Missouri, duly impaneled, sworn and charged to inquire within and for the body of the county of Scotland and state aforesaid, upon their oaths present and charge that Noah Henry, on or about the 18th day of May, 1922, in and upon one Clyde Matlick, on purpose and of his malice aforethought, did then and there make an assault, with a deadly weapon, to wit, a pitchfork, with handle and prongs, all of the length of five feet and of three pounds, him, the said Noah Henry, did then and there feloniously, on purpose and of his malice aforethought, strike, beat, bruise and wound, with intent, then and there, him, the said Clyde Matlick, feloniously, on purpose and of his malice aforethought, to kill and murder, against the peace and dignity of the state.'

The Court of Appeals, in its opinion, held that there was sufficient evidence in the record to sustain the verdict, and, as a portion of the testimony is set out, it is clear that the Court of Appeals reached a correct conclusion in respect to this matter.

Relator charges, in his petition for a writ, that the St. Louis Court of Appeals erred in holding that the indictment aforesaid was sufficient to sustain the conviction of relator, and erred in affirming the judgment against him. It is charged that the ruling and decision of said Court of Appeals, in sustaining the sufficiency of said indictment, is in conflict with a controlling decision of the Supreme Court of Missouri, to wit, the case of State v. Evans, 128 Mo. loc. cit. 411, 31 S.W. 34, and following. This is the sole question for our consideration, and will be considered in the opinion.

Opinion.

I. It is contended by relator that the record of the St. Louis Court of Appeals in the case of State v. Henry, pending therein, should be quashed on the ground that the conclusion of said court, in affirming the conviction in above case, is in conflict with the decision of this court in State v. Evans, 128 Mo. 406, 31 S.W. 34.

The indictment in the Evans Case was based on section 3489, R. S. 1889, which is the same as section 3262, R. S. 1919, except as to the duration of the punishment which may be inflicted in case of conviction. The charging portion of the indictment in the above case reads as follows:

'That Solomon D. Evans on or about the third day of September, A. D. 1893, in and upon the body of one Lee Stewart feloniously on purpose of his malice aforethought did make an assault, and with a deadly weapon, to wit, a knife, of the length of six inches and of the width of one-half an inch, and of the thickness of one-eighth, the said Solomon D. Evans did then and there feloniously, on purpose and of his malice aforethought strike, cut, stab and thrust, with intent then and there him the said Lee Stewart to kill and murder against the peace and dignity of the state.' (Italics ours.)

We are of the opinion that if the italicized portion of said indictment as above set out had been treated as surplusage, without anything further being added thereto, the indictment would probably have been held sufficient.

The question before us is not whether the Court of Appeals erred in failing to follow the rule of law declared in the Evans Case, but whether it is in conflict with the last previous ruling of this court on that subject.

In the case of State v. McConnell, 240 Mo. 269, 144 S.W. 836, the defendant was charged, in an information, with a felony in having conveyed certain real estate without reciting in the deed the whole or the substance of a prior deed of trust executed by him, which covered the same property. The defendant was convicted, sentenced to serve two years in the penitentiary, and appealed to this court. Judge James T. Blair, as a Commissioner of the Supreme Court, in an able and exhaustive review of the law relating to the matter now under consideration, on pages 272, 273, of above volume (144 S.W. 837) said:

'A more serious question is presented by the use, in the concluding part of the last sentence of the information, of the words 'made to Lundy Carstin as aforesaid.'

'Carstin was the grantee in the second deed and not in the first deed, and, without doubt, the words mentioned have no place in the clause in which they are used. The necessity of charging that neither the first deed nor its substance was recited in the second deed cannot be denied. Such a charge is essential to the validity of the information. Does the use of the words quoted so affect the sentence and the sense that the charge becomes merely that the deed to Carstin was not recited in itself, and thereby invalidate the information?

'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 * * * for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged...