State v. Carey

• Decision Date: 31 December 1927
• Docket Number: No. 27859.,27859.
• Citation: 1 S.W.2d 143
• Parties: THE STATE v. FRANK CAREY, Appellant.
• Court: Missouri Supreme Court

1 S.W.2d 143

THE STATE v. FRANK CAREY, Appellant.

No. 27859.

Supreme Court of Missouri. Division No. 2.

December 31, 1927.

Appeal from Hannibal Court of Common Pleas. — Hon. Charles T. Hays, Judge.

AFFIRMED.

J.H. Whitecotton for appellant.

(1) An information must be sworn to and filed by the officer designated by law. Under the statute the assistant prosecuting attorney had no authority to write the information in his name on his oath or to file the same when the prosecuting attorney was present and attending to the duties of his office. Secs. 751, 752, 753, R.S. 1919. (2) The State's instructions numbered 1, 2 and 3 were inconsistent and contradictory, and in conflict with defendant's instruction numbered "H" on the question of whether or not Carey's actual presence and participation in the burglary and larceny were necessary to establish his guilt. Such instructions must have been confusing and misleading to the jury, and therefore reversible error. State v. Owsley, 111 Mo. 450; State v. Snyder, 182 Mo. 402. (3) There being no proof of the ownership of the building burglarized the defendant's instruction marked "B" should have been given, directing the jury to find the defendant not guilty of burglary. State v. Jones, 168 Mo. 402; State v. Henschel, 250 Mo. 269; State v. Winer, 263 Mo. 359; State v. Hammon, 226 Mo. 612; State v. Decker, 217 Mo. 332; State v. Schultz, 295 S.W. 535; State v. Simpson, 295 S.W. 739. There being no allegation of ownership of the building burglarized, required by law, defendant's motion for a new trial should have been sustained because the facts alleged in said information constitute no offense under the laws of the State. State v. Jones, 168 Mo. 402; State v. Keely, 206 Mo. 685; State v. Henschel, 250 Mo. 263; State v. Evans, 217 S.W. 30.

North T. Gentry, Attorney-General, and A.M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The information was properly signed by the assistant prosecuting attorney. Secs. 751, 752, 753, R.S. 1919; State v. Hynes, 39 Mo. App. 569. (2) The information sufficiently charges the crimes of burglary and larceny and is in a form often approved by this court. State v. Tipton, 271 S.W. 55. The information does allege that Odell's, Inc., was an Illinois corporation. (3) The incorporation of Odell's, Inc., was sufficiently proved. State v. Harrison, 285 S.W. 83. (4) The motion for a new trial does not preserve the alleged error in giving Instruction number 1 for review. State v. Standifer, 289 S.W. 856. The same observation applies to State's Instructions 1 and 2. (5) There was no conflict between defendant's Instruction "H" and Instructions 1, 2 and 3 given for the State. The point made is that the instructions given for the State were upon the theory that the jury need not find that defendant was present at the commission of the crime if the jury found a conspiracy; Instruction "H" merely submitted defendant's theory of the case that there was no conspiracy. It is not disputed that there was ample evidence to warrant the giving of instructions on the theory that defendant Carey conspired with his co-defendants. The first instructions summed up the State's theory, hypothesizing the State's evidence, and directed a verdict. The instruction given for defendant did not hypothesize the evidence supporting defendant's theory, and it imposed a greater burden on the State than the law imposes. It could not have harmed defendant and was not error. State v. Howe, 287 Mo. 10; State v. Pinson, 291 Mo. 338; Sec. 3908, R.S. 1919. Erroneous instructions not prejudicial do not authorize a reversal. State v. Bird, 286 Mo. 593.

WALKER, J.

The appellant and two others were jointly charged with burglary and larceny. Appellant was granted a severance, and prior to his trial the two others entered pleas of guilty and were sentenced to imprisonment in the penitentiary. Upon a trial to a jury appellant was convicted under each charge, and sentenced to two years' imprisonment in the penitentiary for burglary and two years for larceny. From this judgment he appeals.

At about 8:30 o'clock P.M., November 23, 1925, Odell's jewelry store in Hannibal was burglarized and a quantity of jewelry stolen therefrom. Thomas and Hagerman, who were charged jointly with the appellant, forced an entrance with an iron bar through a rear window into the jewelry store. While Hagerman stood guard on the outside Thomas entered the store and took therefrom jewelry of the value of $4000. Both Hagerman and Thomas testified that the appellant co-operated with them in planning the crimes; that he stood guard in an alley near the rear window of the store while Hagerman was on the lookout in front and Thomas was in the store taking the jewelry; that immediately thereafter the three went to Thomas's flat and agreed upon an equal division of the jewelry, which consisted largely of finger rings. On November 25th, the second day after the commission of the crimes, Thomas and the appellant went to Milwaukee and tried to dispose of a number of the rings, but failed and returned with them to Hannibal. On November 30th, Thomas and Hagerman made a trip to St. Louis, but were unable to dispose of the rings, which, until the return from St. Louis, had been in the possession of Thomas. Thereafter it appears that there was a division of the property in accordance with the agreement between the appellant and the other defendants, as shown by their subsequent possession of rings identified as a part of those stolen and which they had each either disposed of or had attempted to do so. The two other defendants testified that while they were all in jail awaiting trial the appellant offered to compensate them liberally if they would exonerate him from participation in the crime and threatened to kill them if they refused to do so. It was shown that twelve or fourteen of the rings identified as a part of those stolen were delivered by the appellant to one Finch the night before appellant was arrested.

Appellant's defense was an alibi. He kept a lunch-stand near where the jewelry store was located. He testified that he went to his supper at about 6:15 P.M., the day of the commission of the crime, and did not leave home until about nine o'clock. When he returned Hagerman came in and told him Thomas wanted to see him; he went to Thomas's flat, where they had the rings from Odell's store on display, and after repeated requests from Thomas he agreed to take, and did take, the latter in his car to Milwaukee. To reimburse him for this trip Thomas gave him one of the rings; that at the request of Thomas, the night before their arrest, he delivered twelve or fourteen of the rings to one Finch; that Thomas said he had traded these rings to Finch for some furniture. The appellant's father and mother and his employee at the lunch-stand corroborated his statement as to his whereabouts the night of the crime until nine o'clock, P.M. Others testified to the contrary, that they saw him at his lunch-stand at about seven o'clock, P.M., the night of the crime and one of them stated that he saw appellant at Thomas's flat at about seven o'clock that evening. In addition, a woman named Harris, who lived with Thomas, testified that appellant was at Thomas's flat with the latter and Hagerman when the jewelry was divided at about seven o'clock the evening after their return from St. Louis.

I. The legality of the act of the assistant prosecuting attorney in filing the information is challenged; and as a consequence the validity of the information. It is Information: conceded by the appellant that the assistant was By Assistant appointed under the authority of Sections 751, 752 Prosecuting and 753, Revised Statutes 1919. Attorney.

Section 751 confers the power of appointment of an assistant upon the prosecuting attorney, defines the qualifications of the appointee and declares his official liability to be those of the prosecuting attorney.

Section 752 prescribes how the appointment shall be made and the manner in which the appointee shall qualify for the discharge of his duties.

Section 753, so far as the same relates to the matter at issue, provides that the assistant shall perform the duties of the prosecuting attorney, (1) when the latter is sick, (2) absent from the county, or (3) engaged in the discharge of the duties of his office and cannot attend.

Under the facts we are only concerned with the third subdivision of the section. It is conceded by the appellant that at the time the information was filed the prosecuting attorney was "at the court house engaged in the performance of his duties." This being true, the presumption will obtain that the discharge of those duties was such that he could not attend to the filing of the information and that the assistant was, under the statute, within the purview of his authority in filing it. Other than the concession of the appellant there is no showing as to the character of the duties which were being performed by the prosecuting attorney at the time the assistant filed the information. No such showing could properly have been made because the time and manner in which a prosecuting attorney discharged his official duties are details which the law intended should be left to his exclusive regulation. "Such matters," as was held in State v. Hynes, 39 Mo. App. 569, "cannot be investigated collaterally with a view to determining whether an assistant prosecuting attorney had authority to file an information. Delay and expense would be incurred in the investigation of such collateral matters and would open up an inquiry the sole effect of which would be to obstruct the administration of the law." Under the facts in this case it would require the determination of the extent to which a prosecuting attorney should be engaged in other official duties to give jurisdiction to his assistant to act.

In affirming the ruling in the Hynes case, supra, the Kansas City Court of...