State v. Cheney
| Decision Date | 07 October 1957 |
| Docket Number | No. 22636,22636 |
| Citation | 305 S.W.2d 892 |
| Parties | STATE of Missouri, Respondent, v. William Glen CHENEY, Appellant. STATE of Missouri, Respondent, v. Irene Marie CHENEY, Appellant. |
| Court | Missouri Court of Appeals |
John R. Baty, Kansas City, Arthur M. O'Keefe, Moberly, for appellants.
Wm. G. Johnson, Pros. Atty., Morgan Co., Versailles, for respondent.
The defendants, William Glen Cheney and his wife, Irene Marie Cheney, were convicted in the Circuit Court of Morgan County of violating the compulsory school attendance laws. The punishment of each was fixed at a fine of $10 and ten days imprisonment in the Morgan County jail. Defendants have appealed.
The defendants are charged with a violation of Section 164.010, RSMo 1949, V.A.M.S., which provides that every parent having charge, control or custody of a child between the ages of seven and fourteen years shall cause such child to attend regularly some day school not less than the entire time the school which said child attends is in session, or shall provide such child at home with such regular daily instruction as shall be substantially equivalent at least to the instruction given the children of like age at said day school in the locality in which said child resides.
The information filed against the defendant, William Glen Cheney, alleges that upon and since the 13th day of September, 1956, he has 'refused or neglected to place Stephanie Gail Cheney, his minor child of the age of seven years, of whom the said William Glen Cheney had charge, control and custody, in a day school in the locality in which the said child resides, and has refused or neglected to cause said minor child to attend regularly such a school * * *.'
The information filed against the defendant, Irene Marie Cheney, contains the same language, except that the word 'her' appears in place of the word 'his'.
As is to be seen the informations contain no allegation that the defendants did not provide the child at home with instruction substantially equivalent to the instruction given children of like age at the day school in the locality.
Defendants contend that the informations are insufficient to charge an offense in that they do not contain the necessary negative averments descriptive of the crime charged. Being more specific, defendants assert that the informations are insufficient because they do not In our opinion, defendants' contention is well taken.
The early case of Markely v. State, 10 Mo. 291, dealt with a statute which made it illegal to deal with a salve without the written consent 'of the master, owner or overseer.' The indictment charged that the defendant dealt with a slave without the written consent of the owner. The court held: 'There being three individuals having a right under the statute to legalize the traffic between a white man and a slave, the indictment should have negatived the giving of such permission by each and all of them.'
In the case of State v. De Groat, 259 Mo. 364, 168 S.W. 702, 705, it is said: 'The general rule as to the contents of an indictment which charges an offense, to which there are exceptions negativing guilt, is that all such exceptions must be pleaded in the indictment when they occur as parts of the statutory definition of the offense, in all cases where, if such exceptions be omitted, the offense cannot be accurately described.' (Citing cases.)
In 27 Am.Jur. p. 666, this language appears: ...
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State v. Pilkinton
...Mo., 39 S.W.2d 556, 557(3, 4); State v. Barr, 326 Mo. 1095, 34 S.W.2d 477, 478(1), 479(3, 4). Under the recent holding in State v. Cheney, Mo.App., 305 S.W.2d 892 (handed down in October, 1957, after trial of the instant case), it is clear that the information under review was insufficient ......
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City of St. Louis v. Eskridge
...of the opinion was that if an exception must be negated, it must also be proven by the city. That is not the question here. State v. Cheney, Mo.App., 305 S.W.2d 892, was concerned with an ordinance couched in terms of either the defendant must act one way or he must act in another way. The ......
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State v. Barlett, 8410
...to set forth facts which bring the accused within the terms of the statute. State v. Mace, supra, Mo., 357 S.W.2d 923(3); State v. Cheney, Mo.App., 305 S.W.2d 892(2); State v. Murphy, 141 Mo. 267, 42 S.W. 936, 937. Thus it is that neither the court nor the defendant is required to go beyond......
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Monnig, In re, WD
...stands until every element of the proof is met beyond a reasonable doubt. That contention iterates the rationales of State v. Cheney, 305 S.W.2d 892 (Mo.App.1957), State v. Pilkinton, 310 S.W.2d 304 (Mo.App.1958) and State v. Davis, 598 S.W.2d 189 (Mo.App.1980) that in a criminal prosecutio......