State v. Asher

• Decision Date: 02 December 1919
• Docket Number: No. 16610.,16610.
• Citation: 216 S.W. 1013
• Parties: STATE v. ASHER.
• Court: Missouri Court of Appeals

216 S.W. 1013

STATE v. ASHER.

No. 16610.

St. Louis Court of Appeals. Missouri.

December 2, 1919.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Della Asher was convicted of being a delinquent child, and appealed to the Supreme Court, from which court the cause was transferred on her motion. Judgment of conviction reversed, and defendant discharged.

Fish & Fish, of St. Louis, for appellant. Lawrence McDaniel, of St. Louis, for the State.

BIGGS, C.

The defendant was convicted in the juvenile court, being a division of the circuit court of the city of St. Louis, on a charge of being a delinquent child, and was ordered and adjudged by the court to be committed to the State Industrial Home for Girls until she arrived at the age of 21 years, being a period of 7 years; defendant being at the time of conviction 14 years of age. From this conviction she appealed to the Supreme Court, where the cause on her motion was transferred to this court; the Supreme Court being without jurisdiction, the offense constituting a misdemeanor.

There is nothing before us but the record proper, and appellant has filed no brief or assignments of error in this court. However, under section 5312 of the revision of 1909, no assignment of error is necessary in a criminal cause, and it is our duty to proceed upon the return and render judgment upon the record before us. State v. Wilson, 223 Mo. loc. cit. 182, 122 S. W. 671; State v. Wurdack, 203 S. W. 502.

The information under which defendant was convicted charges that the defendant is a delinquent child within the meaning of the statutes in such case made and provided in this, to wit: That at the city of St. Louis aforesaid, on or about the 25th day of February, 1919, she did knowingly associate with vicious and immoral persons.

In section 2 of the statute creating the juvenile courts (Session Acts 1911, page 177) it is provided that the practice and procedure prescribed by law for the conduct of criminal cases shall govern all proceedings under this article in which the child stands charged with the violation of the criminal statutes of the state. By section 7 of the act it is provided that "all proceedings under this act shall be by information or sworn complaint, * * * as in other cases under the general laws of this state," and that "the information shall in a general way state that the act or acts claimed to have been committed by any child shall constitute such a child a `delinquent child' within the meaning of this act." Section 1 provides that the words "delinquent child" shall include any child under the age of 17 years who knowingly associates with vicious or immoral persons.

We are of the opinion that the information in the present case is wholly insufficient, in that it does not appear anywhere with whom the defendant associated. The defendant was entitled to this information, in order to be able to disprove same at the trial, and to show that the persons with whom she was accused of associating were not vicious or immoral. Section 22 of article 2 of our state Constitution gives to the defendant in a criminal prosecution the right to demand the nature and cause of the accusation.

Generally speaking, an indictment or information charging the commission of an offense that is created by statute is good, if it follows the language of the statute; but this is not true if the statute creating the offense uses generic terms in defining the offense, and does not individuate the offense with such particularity as to notify the defendant of what he or she is to defend against. Under these latter conditions the indictment in the language of the statute is not sufficient.

In State v. Hogan, 31 Mo. 340, the defendant was charged with shooting at a mark or at random across a public highway. The indictment was drawn in the language of the statute, but the particular highway upon which the shooting occurred was not named. The Supreme...