State v. Cutter

• Decision Date: 12 December 1927
• Docket Number: No. 27929.,27929.
• Citation: 1 S.W.2d 96
• Parties: THE STATE v. MIKE CUTTER, Appellant.
• Court: Missouri Supreme Court

1 S.W.2d 96

THE STATE v. MIKE CUTTER, Appellant.

No. 27929.

Supreme Court of Missouri. Division No. 2.

December 12, 1927.

Appeal from Circuit Court of City of St. Louis. — Hon. A.B. Frey, Judge.

AFFIRMED.

William E. Fish and Roy A. Fish for appellant.

(1) Instruction 1 was bad, as it told the jury that the defendant was charged in an indictment with the crime of personating another on a bail bond. He was charged in an information, which was filed after the indictment had been quashed, with the offense of assisting another to personate another on a bail bond. And the court so instructed the jury that they should find him guilty of the crime as charged in the information. (2) Instruction 2 was bad, as the jury was instructed that if they found that he signed a bail bond he was guilty. The evidence clearly shows that it was not a bail bond, but was in fact a recognizance taken in open court. This court in State v. Wilson, 265 Mo. 1, has held there is a material difference between a bail bond and a recognizance. (3) The verdict is bad. It is a special verdict. The jury find the defendant "guilty of falsely personating another in a bail bond, as charged in the information." The defendant was charged in the information with aiding and assisting another to personate another in signing a bail bond. The verdict is against Instruction 2, as said instruction tells the jury to find him guilty as charged in the information. The jury found him guilty of a different and separate charge. State v. Bishop, 231 Mo. 411; State v. Grossman, 214 Mo. 233; State v. McGee, 181 Mo. 312; State v. DeWitt, 186 Mo. 61; State v. Cronin, 189 Mo. 663; State v. Modlin, 197 Mo. 376; State v. Miller, 255 Mo. 223; State v. Hinton, 253 S.W. 722; State v. Griffin, 278 Mo. 436.

North T. Gentry, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.

WALKER, J.

The appellant was charged by information in the Circuit Court of the City of St. Louis with having knowingly, falsely and feloniously aided and abetted one Michael Walsh in impersonating one Martin Brennan in the making of a bail bond by signing the same as surety. Upon a trial to a jury he was convicted and sentenced to two years' imprisonment in the penitentiary. From this judgment he appeals. Before the filing of the information an indictment had been preferred against the appellant in the Circuit Court of the City of St. Louis. The first part of this indictment charged in effect that one Michael Walsh falsely impersonated Martin Brennan in the signing and executing of a bail bond and that Mike Cutter, well knowing that said Walsh was falsely impersonating said Brennan in the signing and making of said bond, signed the same as surety. To this was added the allegation that "the appellant" (defendant therein) "falsely assumed the name and character of Martin Brennan." The appellant filed a motion to quash the indictment on the ground that it charged two offenses. This motion was by the court sustained. Leave was granted to the circuit attorney to file an information forthwith in lieu of the indictment, which was complied with on the same day. The appellant made an oral objection to the filing of the information in lieu of the indictment, and demanded a preliminary hearing and a continuance. This objection and the demands of the appellant were by the court overruled.

Upon the filing of the information the appellant interposed a plea in abatement thereto on the ground that he had not been accorded a preliminary examination. This motion was by the court overruled, and the appellant announcing ready the trial was proceeded with.

I. The indictment, as well as the information, was based on Sections 3454 and 3456, Revised Statutes 1919. The material allegations in each were the same, except that the defect in the indictment that it charged two offenses and upon Substituted which the motion to quash was sustained, was Information. eliminated from the information. In short, the information was filed by way of substitution for the indictment and charged the same offense. The action of the trial court, therefore, in overruling the application for a continuance was not an improper exercise of his discretion in that the appellant suffered no injury and was deprived of no right by the court's ruling.

II. It is contended that error was committed in denying the appellant's application for a preliminary examination. The right to such an examination is statutory. It is confined to charges by information and is subject to the limitations in the law creating it. Its purpose is to prevent a possible abuse of Preliminary power by prosecuting officers in enabling the Hearing. accused to have a speedy hearing that it may be determined whether he should be held to answer or be discharged. [State v. Langford, 293 Mo. 436, 240 S.W. 167.] It is provided in the statute (Sec. 3908a, Laws 1925, p. 195) that if an indictment be held insufficient, either as to form or substance, an information charging the same offense charged or attempted to be charged in such indictment may be substituted therefor at any time before the jury is sworn. It is further provided in the same statute (Sec. 3848, Laws 1925, p. 195) that a preliminary examination shall in no case be required where an information has been substituted for an indictment as authorized by Section 3908a, supra. The trial court ruled, and the record confirms the correctness of his ruling, that the information filed herein charged the same offense as that embodied in the indictment. The substitution of the former for the latter was therefore not error and the appellant was not prejudiced by the trial court's ruling in this regard.

III. The appellant contends that his demurrers to the evidence should have been sustained. The demurrer filed at the close of the State's evidence was waived when the appellant introduced evidence in his own behalf. [State v. Osborne, 246 S.W. (Mo.) 878; State v. Barker, 242 S.W. (Mo.) 409.] Concerning the demurrer filed at the close of the case, while the Demurrer to evidence was largely circumstantial it was Evidence. sufficient to show the guilty knowledge of the appellant in signing the bond. Knowing, as he must have known from all of the facts, that Walsh was perpetrating a fraud upon the court, it was proper to submit the question of his guilt to the jury. Proper instructions were given as to the manner in which the circumstantial evidence was to be considered, leaving no room for the jury to be misled.

IV. Complaint is made of instructions given at the request of the State, numbered one and two.

The first is a formal general instruction defining the duty of the court in declaring the law and the province of the jury in regard to the facts. The only error complained of in this instruction is the use of the word "indictment" instead of Indictment for "information" in stating the form of the charge. Information. In no other instruction does this occur, but wherever the charge is thereafter referred to the word "information" is used. An error is entitled to consideration when from its nature...