State v. Carson

• Decision Date: 04 June 1929
• Docket Number: 29474
• Parties: The State, Appellant, v. H. V. Carson
• Court: Missouri Supreme Court

18 S.W.2d 457

323 Mo. 46

The State, Appellant, v. H. V. Carson

No. 29474

Supreme Court of Missouri

June 4, 1929

Appeal from Howard Circuit Court; Hon. A. W. Walker, Judge.

Reversed and remanded (with directions to reinstate verdict).

Stratton Shartel, Attorney-General, A. B. Lovan, Assistant Attorney-General, and Tyre W. Burton, Prosecuting Attorney for appellant.

(1) The circuit court held that the information is insufficient because it does not allege that the bank was incorporated. The State contends that the circuit court erred in ruling that the information was insufficient, and in support of such contention submits the following: (a) In other states it has been definitely decided that even in larceny cases it is not necessary to allege in the indictment that the owner of the stolen property is incorporated. Territory v Garcia, 75 P. 34; State v. Grant, 10 S.E. 554; State v. Rollo, 54 A. 683; State v Fitzpatrick, 32 A. 1072; Territory v. Walker, 120 P. 336. (b) This court has decided that "it is not necessary to the sufficiency of an indictment for burglary and larceny from a railroad depot that it should allege either that the owner of the property was a corporation or that as such it was capable of owning property. State v. Shields, 89 Mo. 259. In a burglary and larceny case, whether the owner of the premises be a corporation, a partnership or individual, is not material. State v. Hedgpeth, 311 Mo. 457, 278 S.W. 740; State v. Reed, 290 S.W. 145. (c) There is a conflict in the decisions of this court on the point as to whether it is necessary to allege in an indictment or information that the owner of stolen property is incorporated. The following decisions are to the effect that it is necessary to allege the incorporation. State v. Jones, 168 Mo. 398; State v. Horned, 178 Mo. 59; State v. James, 194 Mo. 268; State v. Kelley, 206 Mo. 685; State v. Clark, 223 Mo. 48; State v. Henchel, 250 Mo. 263; State v. Hurt, 285 S.W. 976; State v. Jordan, 289 S.W. 540; State v. Schultz, 295 S.W. 535; State v. Simpson, 295 S.W. 739. The State respectfully submits that the foregoing cases ought not be any longer followed; that the cases cited above in paragraph (a) properly declare the law; that the Missouri case cited in paragraph (b) ought to be followed. And further, in view of the doctrine laid down in the case of State v. Hedgpeth, 311 Mo. 457, to the effect that "whether the owner of the premises be a corporation, partnership or individual is not material," under Sec. 3908, R. S. 1919, the information in this case cannot be held insufficient because it does not allege the incorporation of the bank. (2) The authorities on this point in burglary and larceny cases cannot apply to a case in which the charge is selling mortgaged property. In this case the defendant sold his own property in violation of the law because he had mortgaged it to the bank. The State proved without objection that the bank was incorporated. The defendant neither objected nor suggested any surprise because of such testimony. The State, therefore, contends that, after verdict, the defendant has no right to complain.

W. V. Draffen and D. W. Shackleford for respondent.

(1) No appeal will lie except from a final judgment. State v. Pepper, 7 Mo. 348; State v. Gregory, 38 Mo. 501; State v. Brannon, 53 Mo. 244; State v. Mullix, 53 Mo. 355; State v. Fraker, 141 Mo. 638; State v. Wilson, 100 Mo.App. 473; State v. Ross, 119 Mo.App. 403. (2) A ruling of a court upon a motion for a new trial, is not a final judgment from which an appeal will lie. Lowe v. Frede, 258 Mo. 210. (3) A final judgment must purport to be the actual and absolute judgment of the law, as distinguished from a mere finding that one of the parties is entitled to a judgment. State ex rel. v. Klein, 140 Mo. 510; Freeman v. McCrite, 165 Mo.App. 4. (4) An entry of record, "Now on this day this cause coming on to be heard, the court, after hearing the evidence in the cause, renders judgment for the defendants," is not a final judgment. Freeman v. McCrite, 165 Mo.App. 4. (5) Whenever it is necessary that an information shall state the ownership of property, and such ownership is laid in a corporation, the fact that such owner is a corporation must be alleged. State v. Patterson, 159 Mo. 101; State v. Jones, 168 Mo. 402; State v. Horned, 178 Mo. 61; State v. James, 194 Mo. 273; State v. Kelley, 206 Mo. 693; State v. Clark, 223 Mo. 50; State v. Henschel, 250 Mo. 269; State v. Hurt, 285 S.W. 976; State v. Jordan, 289 S.W. 540; State v. Schultz, 295 S.W. 536; State v. Simpson, 295 S.W. 739; Wallace v. People, 63 Ill. 452; Staaden v. People, 82 Ill. 434; People v. Brander, 244 Ill. 30; McCowan v. State, 58 Ark. 18; People v. Bogart, 36 Cal. 248; People v. Schwartz, 32 Cal. 165; Garner v. State, 105 S.W. 188; Merritt v. State, 75 Ark. 54; State v. Glaze, 159 N.W. 268; Smith v. State, 30 S.W. 237; Greene v. State, 199 S.W. 623; State v. Potter, 191 N.W. 857; Durrow v. State, 41 So. 987; Mazett v. State, 66 So. 871; Noah v. State, 72 So. 611; Roby v. State, 54 S.W. 1115; Thurmond v. State, 17 S.W. 1098; Pells v. State, 20 Fla. 774; White v. State, 5 S.W. 858; Martin v. State, 5 S.W. 859; State v. Mead, 27 Vt. 722; State v. Cent. Ry. Co., 28 Vt. 586; State v. Keifer, 151 N.W. 441; Duncan v. State, 10 So. 816; State v. Suppe, 57 P. 106; Phelps v. State, 219 P. 591; Davis v. State, 51 Fla. 38; Burns v. State, 89 Fla. 497; Nassett v. State, 32 S.W. 699; State v. Parsons, 169 P. 476; Stallings v. State, 15 S.W. 717. (6) The dominating reason for the rule, that where it is required that ownership of property be alleged in the information, it is necessary to state whether such owner is an individual, a partnership or a corporation, is that the defendant may exhibit the judgment to show former conviction or acquittal, and not be put to the expense, inconvenience and uncertainty of finding and introducing parol evidence in that behalf. State v. Jones, 168 Mo. 402; McCowan v. State, 58 Ark. 19; State v. Potter, 191 N.W. 857; State v. Keiffer, 151 N.W. 441. (7) The crime would be none the less larceny were the owner not alleged. The allegation of ownership is required in order that one accused of larceny may be advised in this particular, and be prepared to answer thereto, and also that the accused may thereafter be able to plead a judgment of conviction or acquittal as an adjudication. State v. Potter, 191 N.W. 857; State v. Keiffer, 151 N.W. 441.

White, J. All concur; Walker, J., in separate opinion.

OPINION

WHITE

The defendant was convicted in the Circuit Court of Howard County of selling mortgaged property, under Section 3348, Revised Statutes 1919. The information charged that May 3, 1927, he executed and delivered to the Citizens Bank of New Franklin, Missouri, a chattel mortgage transferring certain property, livestock, described, to secure a note for $ 1404, signed by him and payable to the Citizens Bank of New Franklin; that on the -- day of September, 1927, intending to cheat and defraud the said Citizens' Bank of New Franklin, he did unlawfully and feloniously sell to one R. M. Robertson a part of the said livestock, describing it, without the written consent of the Citizens Bank of New Franklin, mortgagee, and without informing the said R. M. Robertson that the property was mortgaged; that the value of the property so sold was one hundred dollars.

On a trial the jury found the defendant guilty and assessed his punishment at a fine of one hundred dollars. Later he filed a motion for new trial, assigning several alleged errors in the proceeding, and attacking the amended information upon which the trial was had.

The court sustained the motion for new trial, and filed a memorandum, considering each assignment of error, and finding that there was no merit in any assignment except one -- that the information was insufficient. The memorandum entered upon the record proper contains the following:

"It is the judgment of the court that the amended information is insufficient, because it does not charge that the Citizens Bank of New Franklin was a corporation. It is the further judgment of the court that, although the evidence showed that the bank was a corporation, the information is insufficient because it did not allege that fact. It is the opinion of the court that the defendant was bailee of the property mortgaged, and his wrongful sale of it is analogous to embezzlement.

"For the foregoing reason the motion for new trial is sustained."

The prosecuting attorney thereafter filed his motion for rehearing, which was overruled, and thereupon filed his application and affidavit for appeal on behalf of the State to this court. The appeal was granted. All of this appears in the record proper. He then filed a bill of exceptions in which was incorporated the motion for new trial filed by the defendant, the memorandum of the court sustaining said motion; the motion for rehearing filed by the prosecuting attorney, the affidavit for appeal, and so on. The record therefore is complete so far as effectually to preserve the point relied upon by the State for a reversal. The order and ruling of the court appears both in the record proper and in the bill of exceptions.

I. Section 4080, Revised Statutes 1919, as reenacted in 1925 (Laws 1925, p. 198), provides that the motion in arrest of judgment is thereby abolished, and all the rights which theretofore could have been saved by a defendant in a motion in arrest, "and which have not been waived by failure to make timely objections," may be saved in the motion for new trial.

In ruling upon the motion for new trial the court overruled every assignment of error properly belonging to the motion for new trial before the enactment of that statute, and sustained that...