State v. Crouch, s. 48837
| Decision Date | 12 February 1962 |
| Docket Number | Nos. 48837,48838,No. 2,s. 48837,2 |
| Citation | 353 S.W.2d 597 |
| Parties | STATE of Missouri, Appellant, v. Eddie CROUCH, Respondent. STATE of Missouri, Appellant, v. Clyde W. JENKINS, Respondent |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., William L. Hungate, Sp. Asst. Atty. Gen., for appellant.
John R. Martin, Joplin, for respondents.
These two cases are prosecutions for the possession of burglary tools contrary to the provisions of Section 560.115 RSMo 1959, V.A.M.S. On defendants' motions, the circuit court quashed the information filed in each case and discharged the defendants. The state appealed and has filed a brief in this court, but there is no brief on behalf of the defendants. On motion of the state, the appeals were consolidated. Since the cases are identical, a reference to a pleading or proceeding in one of the cases will include and apply as well to the other. The essential question is the sufficiency of the informations filed in the circuit court and the propriety of the ruling quashing them and discharging the defendants.
Motions to quash have been abolished by S.Ct. Rule 25.05, V.A.M.R., but a motion so designated may be treated as a motion to dismiss. S.Ct. Rule 25.06; State v. Atkinson, Mo., 285 S.W.2d 563, 566. Since the information was adjudged insufficient on a motion prior to judgment, the state is entitled to appeal. Sections 547.200 and 547.210; S.Ct. Rule 28.04.
On November 2, 1960, separate complaints were filed in the magistrate court of Jasper County charging each of the defendants with the crime of possession of burglary tools. The defendants waived formal arraignment and requested a preliminary hearing. Both were enlarged on bond. Thereafter amended complaints were filed to which the defendants filed separate motions to suppress the testimony of the four persons named for the reasons that the property in question was obtained from an automobile without a warrant and by an unlawful search and seizure. Thereafter the motion to suppress was taken up and 'sustained as to all items listed except two (2) Pistols and a rubber face mask.' On December 5, 1960, second amended complaints were filed which listed additional items alleged to be burglary tools. The defendants again requested a preliminary examination. An entry in the transcript recites that on December 15, 1960, the magistrate sustained the motions to suppress 'to same extent as to the second amended Complaint.' The preliminary examination was set for hearing on December 28, 1960, at which time the defendants waived preliminary hearings and were: 'Bound over to trial in Circuit Court of Jasper County.'
A transcript of proceedings in the magistrate court was filed in the circuit court on December 30, 1960, and on the same date informations were filed in the circuit court. The informations followed substantially the language of the second amended complaint filed in the magistrate court. On April 10, 1961, the defendants filed motions to quash the informations alleging that the judge of the magistrate court had sustained their motions to suppress 'all of the items listed in said information except rifles, pistols and rubber face mask, which items, do not constitute burglary tools, and therefore said information does not state a cause of action for which defendant can be prosecuted.' On April 18, 1961, the circuit court sustained the defendants' motions, quashed the indictments and discharged the defendants. The state appealed from this judgment of the circuit court.
For a better understanding of their contents, the information, the motion to quash, and the motion to suppress will be set out in full. The second amended complaint is omitted because it is not directly involved, but in substance it is the same as the information. The information filed in the circuit court, the validity of which is in issue on this appeal, is as follows:
'Stewart E. Tatum, Assistant Prosecuting Attorney within and for the County of Jasper, in the State of Missouri, upon his oath, informs the Court and charges that on or about the 1st day of November, 1960, in the County of Jasper and State of Missouri, Clyde W. Jenkins did wilfully, unlawfully and feloniously have in his custody and concealed about his person, rifles, pistols, rubber false faces, one sledge hammer, two screw drivers, one saw, two flash lights, one canvas tool bag, one pair crepe-sole tennis shoes, one pair gloves, one pair grip pliers, one brace, one large wrecking bar, two gas masks, one road map, seven punches, one wood bit, two small wrecking bars, two face masks, one pair dress shoes and one pair coveralls, said instruments being then and there material, implements and mechanical devices, adapted, designed and commonly used for breaking into a warehouse, store, stop, office, dwelling house, door, shutter or window of a building, or any vault or safe, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.'
The motion on which the information was quashed reads as follows:
'Comes now the Defendant in the above entitled cause, and moves the Court to quash the information filed herein for the reason that the Honorable Enos Curry has heretofore sustained a motion to suppress all of the items listed in said information except rifles, pistols and rubber face mask, which items, do not constitute burglary tools, and therefore said information does not state a cause of action for which defendant can be prosecuted.
'WHEREFORE defendant prays the Court to quash this information.'
The judge alleged to have sustained the motion to suppress is a magistrate of Jasper County, but that fact does not appear from the transcript. The motion to suppress filed in the magistrate court is as follows:
'Comes now the defendant and moves the Court to suppress any and all testimony of Walter Flemmer, Jim Miller, John Showers and Gene Eichelberger in regard to any property obtained from a 1957 Oldsmobile on or about November 2, 1960, for the following reasons:
'1. That the search and seizure were made without warrant and without other lawful authority;
'2. That said property was obtained by an unlawful search and seizure and in violation of the rights of the defendant under Section Fifteen of Article One of the Constitution of Missouri and Amendment Fourteen of the Constitution of the United States.
'WHEREFORE, defendant moves the Court to suppress said testimony.'
In challenging the sufficiency of the information, it is apparent that the defendants place some reliance on the fact that their motions to suppress had been sustained in the magistrate court.
S.Ct. Rule 23.02 and Sec. 544.250 provide that no information charging the commission of a felony shall be filed against any person unless the accused shall first have been accorded the right of a preliminary examination before a magistrate in the county where the offense is alleged to have been committed. The accused may waive the preliminary hearing as was done in this case. If upon preliminary examination it appears that a felony has been committed and that there is probable cause to believe the accused guilty, the magistrate shall hold him to answer in the court having jurisdiction of the offense. S.Ct. Rule 23.08; Secs. 544.410 and 544.420, RSMo 1959, V.A.M.S.
The waiver of a preliminary examination is the same in legal effect as if a preliminary examination had been held and a finding made by the magistrate that a felony had been committed and that there was probable cause to believe that the accused was the offender. S.Ct. Rule 23.02; State v. Thomas, 353 Mo. 345, 182 S.W.2d 534, 538-539; State v. Layton, 332 Mo. 216, 58 S.W.2d 454, 457; State v. Gartland, 304 Mo. 87, 263 S.W. 165, 168; State v. Jack, Mo., 209 S.W. 209 S.W. 890; 22 C.J.S. Criminal Law Sec. 333b, p. 856. In this state of the record the defendant was properly required to appear in the circuit court and the prosecuting attorney was entitled to file the information.
A preliminary examination before a magistrate is in no...
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State v. Brooks
...followed the form of the statutes on burglary and stealing, it did charge criminal offenses and a dismissal was improper, State v. Crouch, Mo., 353 S.W.2d 597, 601; State v. Anderson, Mo., 232 S.W.2d 909, 911. That contention does not reach the real point The parties here did not submit an ......
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State v. Watson
...and this is generally deemed sufficient to charge an offense. State v. Anderson, Mo., 232 S.W.2d 909 and cases there cited. In State v. Crouch, Mo., 353 S.W.2d 597, an information not unlike the information here was under attack by a motion to quash treated as a motion to dismiss. The trial......
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