State v. Bennett

• Decision Date: 23 February 1923
• Docket Number: No. 23825.,23825.
• Citation: 297 Mo. 190,248 S.W. 924
• Parties: STATE v. BENNETT.
• Court: Missouri Supreme Court

248 S.W. 924

297 Mo. 190

STATE v. BENNETT.

No. 23825.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

Lee Bennett was convicted of larceny, and he appeals. Reversed and remanded.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On August 15, 1921, the prosecuting attorney of Atchison county, Mo., filed in the circuit court of said county a verified information which reads as follows:

"Thomas M. Bailey, prosecuting attorney within and for the county of Atchison and state of Missouri, under his oath of office informs the court that Lee Bennett and Joseph Bridges, on or about the 31st day of May, A. D. 1921, at the county of Atchison, in the state of Missouri, 65 silk blouses of the value of $5 each, 10 silk petticoats of the value of $3 each, 14 bolts of silk of the value of $15 each, and one voile dress of the value of $4, and all of the aggregate value of $569, of the personal property, goods, and chattels of the Golden Rule store, B. F. Coughlan, sole owner, then and there steal, take and carry away, against the peace and dignity of the state. Thomas hi. Bailey, prosecuting attorney within and for the county of Atchison and state of Missouri."

A severance was granted, defendant Lee Bennett placed upon trial, and on November 28, 1921, the jury before whom this case was tried returned into court the following verdict:

"We, the jury, find the defendant guilty, and we assess his punishment at imprisonment in the penitentiary for the period of 2 years.

                                "Foreman, J. M. N. Youel."
                

Defendant in due time filed a motion for a new trial, which was overruled. He was thereafter sentenced, judgment entered upon the verdict aforesaid, and the cause duly appealed to this court.

A transcript was filed in this court on August 30, 1922, which did not contain the evidence adduced at the trial, nor did it show that a bill of exceptions was filed in the cause. The Attorney General, on the record thus presented, briefed the case or the theory that the record proper alone could be considered. Afterwards, on December 28, 1922, appellant filed in this court a complete transcript of the record and proceedings in the cause, and which discloses that the bill of exceptions herein was filed in the circuit court of Atchison county, Mo., on November 27, 1922.

The evidence on behalf of the state tends to show that on May 31, 1921, B. F. Coughlan owned a stock of goods at Hamburg, Iowa, then and there under the control of his brother, M. Coughlan; that certain silks and other goods, of the value of more than $30, were taken from said store on the night of May 31, 1921, without the knowledge or consent of said Coughlans, or either of them; that shortly afterwards the property aforesaid was found concealed in a beer box in Atchison county, Mo., and possession of same was taken by the sheriff of said county; that said goods contained the mark used by said Coughlans in fixing the cost and selling price of same; that soon after said goods were taken defendant Bennett talked with H. M. Coughlan at said store in Hamburg, and staid he was not guilty, but wanted to know what Coughlan would accept in money for the damage done, as it would be cheaper for him to pay what the store had been damaged than to incur the expense of a trial.

The sheriff testified that defendant Bennett told him he brought these goods to Charlie Harmon's, where they were found, and that Joe Bridges was not connected with them; that he (defendant) never stole the goods, but bought them from a junk dealer in Nebraska; that he found the goods on Charlie Harmon's premises in the edge of the timber, in Atchison county, Mo.; that the goods were identified by Coughlan and taken to Hamburg, Iowa; that it was about seven miles from where the goods were found to Hamburg.

Other testimony along the same line was offered by the state.

The testimony offered in behalf of defendant tended to show that he did not steal the goods in controversy, that he was elsewhere on the night of the theft, and that he bought the goods from a junk dealer in Nebraska, and brought them to Atchison county, Mo.

The rulings of the court and the instructions will be considered, as far as necessary in the opinion.

Opinion.

1. The information is heretofore set out and speaks for itself. The Attorney General and assistant, in their brief, concede that said information is fatally defective, in that it fails to allege that the property described therein was feloniously stolen, nor does it allege that the same was taken with a felonious intent. Several authorities are cited in respondent's brief in support of above suggestion, which will be referred to later.

Sections 3685 and 3312, R. S. 1919, relating to grand larceny, read as follows:

Section 3685. "Every person who shall steal, or obtain by robbery, the property of another in any other state or country, and shall bring the same into this state, may be convicted and punished for larceny in the same manner as if such property had been feloniously stolen or...