State v. Akers

CourtUnited States State Supreme Court of Missouri
Citation213 S.W. 424,278 Mo. 368
Docket NumberNo. 21368.,21368.
PartiesSTATE v. AKERS.
Decision Date03 June 1919

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Delbert Akers was convicted of grand larceny, and appeals. Reversed and remanded.

From a judgment of the Dunklin county circuit court, sentencing him to two years' imprisonment for the crime of grand larceny, defendant appeals.

The information was in two counts: Count 1 in part charged:

"That on the 16th day of June, 1917, in the county of Dunklin and state of Missouri, one Delbert Akers, certain neat cattle, to wit, one red cow and one black Jersey, of the value of thirty-five dollars each, of the property and chattels of Lee Cook, then and there being found. then and there did feloniously steal, take, and carry away," etc.

Count 1 further charges one McMahon with being an accessory before the fact. The second count charges in part:

"That on the 16th day of June, 1917, in the county of Dunklin and state of Missouri, one Delbert Akers, certain neat cattle, to wit, one red cow and one black Jersey cow of the value, of $35 each, of the property and chattels of Lee Cook, did then and there feloniously steal, take, and carry away," etc.

Count 2 further charges said McMahon with being an accessory after the fact. A severance was granted, and defendant Akers was separately tried. The jury returned the following verdict:

"We, the jury, find the defendant Delbert Akers guilty of grand larceny as charged in the first count of the information, and assess his punishment at imprisonment in the penitentiary for a term of (2) two years. And we find him not guilty upon the second count of the information.

                           "[Signed] L. O. Green, Foreman."
                
Frank W. McAllister, Atty. Gen., and S. E. Skelley, Asst. Atty. Gen., for the State
                

WILLIAMS, P. J. (after stating the facts as above).

I. The transcript of the record proper in this case fails to show that the purported bill of exceptions was signed and filed in the trial court. That being true, the matters contained in the bill of exceptions are not before us for review. State v. George, 221 Mo. 519 loc. cit. 522, 120 S. W. 35.

II. It will be noted that each count of the information charges appellant with the identical crime. The verdict finds him guilty under the first count and not guilty under the second count: The verdict is entirely inconsistent because the jury could not have legally found what their verdict says they did find. Appellant was either guilty or not guilty of the crime and could not have been both as found by the jury. We therefore think the verdict is too contradictory to support a judgment of conviction.

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22 cases
  • State v. Handley
    • United States
    • Missouri Supreme Court
    • 17 Julio 1979
    ... ... In State v. Akers, 278 Mo. 368, 213 S.W. 424 (1919), the jury rendered verdicts of guilty on Count I of an information and of not guilty of Count II, but on examination the two counts were found to have charged the same crime in almost identical words. This Court found the judgment "too contradictory to support a ... ...
  • People v. Hairston
    • United States
    • Illinois Supreme Court
    • 29 Septiembre 1970
    ... Page 840 ... 263 N.E.2d 840 ... 46 Ill.2d 348 ... The PEOPLE of the State of Illinois, Appellee, ... Eugene HAIRSTON, Appellant ... No. 41635 ... Supreme Court of Illinois ... Sept. 29, 1970 ... In support of this result it was aptly stated by a Missouri court in State v. Akers, 278 Mo. 368, 213 S.W. 424: 'If the verdict * * * was too inconsistent to support a judgment of conviction, it was likewise too inconsistent to ... ...
  • Dunn v. United States
    • United States
    • U.S. Supreme Court
    • 11 Enero 1932
    ... ... Ct. 92, 42 L. Ed. 509; Hammer v. United States, 271 U. S. 620, 625, 46 S. Ct. 603, 70 L. Ed. 1118; People v. Aro, 6 Cal. 207, 65 Am. Dec. 503; State v. Murray, 41 Iowa, 580 ...           By finding petitioner not guilty under the second and third counts, the jury conclusively ... Speiller v. United States (C. C. A.) 31 F.(2d) 682, 684; State v. Akers, 278 Mo. 368, 370, 213 S. W. 424; State v. Headrick, 179 Mo. 300, 307, 78 S. W. 630. Cf. Commonwealth v. Edds, 14 Gray (Mass.) 406, 410; United ... ...
  • State v. Peters
    • United States
    • Missouri Supreme Court
    • 25 Mayo 1993
    ... ... Id. (applying Cline and Collins ). See Section V, infra ... 3 The only case that even suggests such an outcome is State v. Akers, 278 Mo. 368, 213 S.W. 424 (1919). There, the jury returned inconsistent verdicts in a two-count prosecution where both counts had charged the same crime. The Court held that Missouri's double jeopardy provision would not preclude a retrial of the defendant. Id. 213 S.W. at 425. As a later ... ...
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