State v. Clark

• Citation: 122 S.W. 665,223 Mo. 48
• Parties: STATE v. CLARK.
• Decision Date: 23 November 1909
• Court: United States State Supreme Court of Missouri

122 S.W. 665

223 Mo. 48

STATE v. CLARK.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

LARCENY (§ 32) — SUFFICIENCY OF INFORMATION — OWNERSHIP OF PROPERTY.

An information charging accused "certain property, the goods and chattels of the C. Ry. Co., then and there being, feloniously did steal," etc., is insufficient to charge larceny, as failing to allege that the stated owner was a corporation or a partnership, and, if a partnership, the members thereof; the question of the ownership of the property being an essential element of the offense, and the defect not being curable by proof.

Appeal from Circuit Court, Livingston County; Francis H. Trimble, Judge.

William Clark was convicted of larceny, and he appeals. Reversed and remanded.

Scott J. Miller and Fred S. Hudson, for appellant. E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

BURGESS, J.

Upon a criminal charge hereinafter set out by a count of the information to be quoted, the defendant was found guilty, and his punishment fixed at two years in the penitentiary. Going to the statement and brief for the state, it appears that the prosecuting attorney of Livingston county filed an information against the defendant, charging in the first count as follows: "Comes now John H. Taylor, prosecuting attorney within and for Livingston county, Missouri, and informs the court, on his oath of office, on his own knowledge, information, and belief, that Wallace Roland and Wm. Clark, on or about the 27th day of November, 1906, at Livingston county, Missouri, twenty-four pairs of shoes, of the value of fifty-six dollars and forty cents, of the goods and chattels of the Chicago, Burlington & Quincy Railway Company, then and there being, feloniously did steal, take, and carry away, against the peace and dignity of the state." The second count was not submitted by the trial court to the jury, and further mention thereof is not necessary. To this information a proper motion to quash was filed, raising the question hereinafter to be discussed. This motion was overruled, and the defendant forced to trial, with the result aforesaid. Motions for new trial and in arrest of judgment were likewise filed and overruled. From the judgment of conviction the defendant has appealed.

The chief point is the sufficiency of the first count of the information, upon which the conviction was had. Counsel for the defendant couch their chief objection in this language: "The information in this case is faulty. In fact, there is no information at all. The information fails to allege that the Chicago, Burlington & Quincy Railway Company is either a natural or artificial person, and it has been held by the Supreme Court, in a direct case, that this of itself is an insufficient information, in failing to allege the ownership of the property." It will not be necessary to go further than this proposition. There is no allegation that the alleged party owning the property said to have been stolen is an individual, a copartnership, or a corporation. This court cannot, at least, take cognizance of the fact that the alleged owner is a corporation or a copartnership, however we might view the name in the information as indicative of an individual. In this case the name given of the alleged owner of the alleged stolen property is such that we know it is not that of a single natural individual, and it must, therefore, be the name of either a corporation or a copartnership. The information does not charge whether it is one or the other, and, if a copartnership, the respective members thereof. Not only should the information properly charge the facts in this regard, when designating the ownership of property, but the proof must accord with this required allegation. If the allegation is absent from the information, the mere matter of proof would not cure this fatal defect in the pleading.

The precise question in this case was discussed in the case of State v. Jones, 168 Mo., loc. cit. 402, 68 S. W. 567, where we then said: "This brings us to the last objection to the...