State v. Davidson
| Decision Date | 30 April 1881 |
| Parties | THE STATE v. DAVIDSON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court.--HON. H. S. KELLEY, Judge.
REVERSED.
D. H. McIntyre, Attorney General, for the State.
The defendant was indicted under section 28, 1 Wagner's Statutes, 457, for a larceny in a dwelling house. The indictment is in usual form. On trial had, the jury returned this verdict: “We, the jury, find the defendant guilty of petit larceny, and assess his punishment at a fine of $100 and imprisonment in the county jail for three months.”
I.
We denied at last term a motion to affirm the judgment in this case, which motion was based on the failure of the defendant to “prosecute his appeal.” The point is still urged that he yet continues in default in that particular. In civil causes, for failure to assign errors, the appeal may be dismissed or the judgment affirmed. 2 Wag. Stat., p. 1066, § 22. In civil causes also, the statute is express that each party shall “furnish the court with a clear and concise statement of the case and the points intended to be insisted on in argument.” Ib., 1067, § 31. In civil causes also, the judgment will be affirmed if the appellant fails to prosecute his appeal by filing in this court a perfect transcript, and such transcript be produced here by the opposite party. Ib., p. 1069, § 49. There are no such provisions in criminal causes, and the pratice therein, if we are to follow the statute, is totally dissimilar from that in civil causes. In the former class of causes no assignment of error or joinder in error is necessary, nor statement of the case or points intended to be insisted on, but on the return of the appeal it becomes the duty of this court to “render judgment on the record” before us. Ib., p. 1115, § 20; State v. Barnett, 63 Mo. 300. The case of the State v. Armstrong, 46 Mo. 588, where the judgment was affirmed because the defendant failed to prosecute his appeal by presenting a brief of the facts and points on which he relied, was not well considered, and is not law.
II.
But the judgment cannot be affirmed on the merits. On examination of the record, of which the verdict forms part, we find that the defendant, though indicted for “larceny committed in a dwelling house,” was found guilty, not as charged in the indictment, but merely guilty of “petit larceny,” a totally distinct offense; one which the indictment does not charge. This case does not fall within the purview of section 14, page 513, 1 Wagner's Statutes, whereby a party indicted for an offense “consisting of different degrees,” may be found “not guilty of the offense charged in the...
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