State v. Crouch, s. 48837

• Court: United States State Supreme Court of Missouri
• Citation: 353 S.W.2d 597
• Docket Number: Nos. 48837,48838,No. 2,s. 48837,2
• Parties: STATE of Missouri, Appellant, v. Eddie CROUCH, Respondent. STATE of Missouri, Appellant, v. Clyde W. JENKINS, Respondent
• Decision Date: 12 February 1962

Page 597

353 S.W.2d 597 STATE of Missouri, Appellant,
v.
Eddie CROUCH, Respondent.
STATE of Missouri, Appellant,
v.
Clyde W. JENKINS, Respondent. Nos. 48837, 48838. Supreme Court of Missouri, Division No. 2. Feb. 12, 1962.

Page 598

Thomas F. Eagleton, Atty. Gen., William L. Hungate, Sp. Asst. Atty. Gen., for appellant.

John R. Martin, Joplin, for respondents.

STORCKMAN, Judge.

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

Page 599

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...