State v. Edelen
| Citation | 231 S.W. 585,288 Mo. 160 |
| Parties | THE STATE v. GLEN EDELEN, Appellant |
| Decision Date | 26 May 1921 |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. N. M. Pettingill, Judge.
Reversed and remanded.
J. A Whiteside, T. L. Montgomery and Perry S. Rader for appellant.
(1) The information in this case was insufficient. State v Coleman, 186 Mo. 151; State v. Minor, 193 Mo 597, 604; State v. Atchley, 186 Mo. 197; State v. Dawson, 187 Mo. 601. (a) In its concluding clause the prosecuting attorney does not charge that the information is made "upon his oath." (b) An indictment for murder is fatally defective unless it contains a conclusion. 22 Cyc. 243; 14 R. C. L. p. 163, sec. 12; State v. Stacy, 103 Mo. 15; State v. Ulrich, 96 Mo.App. 691; State v. Wilson, 143 Mo. 334; State v. Rector, 126 Mo. 330, 341; State v. Cline, 264 Mo. 418. (c) The constitution requires that an indictment must have a conclusion. Art. 6, sec. 38; State v. Stacy, 103 Mo. 15. (2) The information in this case was not sworn to by the prosecuting attorney, nor by any other person. It was therefore no information, performed no function, was a mere "scrap of paper," did not conform to the law and should have been quashed as requested by defendant upon his motion to quash timely filed. Secs. 3849, 3850, 3851, R. S. 1919; State v. Brown, 181 Mo. 225; State v. Bonner, 178 Mo. 424; State v. Hicks, 178 Mo. 433; State v. Schnettler, 181 Mo. 187; State v. White, 55 Mo.App. 359. (a) The question that the information "is not verified by the prosecuting attorney, or any one else" and that "it is not verified as the law directs" was raised by a motion to quash, which it set out on page six of the printed abstract. That was the proper way to raise the question. State v. Bonner, 178 Mo. 424; State v. Hicks, 178 Mo. 445; State v. Brown, 181 Mo. 229. (b) There was a separate affidavit of Golda Hoffeditz filed with the clerk of the circuit court, and the information states that it is based "upon the affidavit of one Golda Hoffeditz, herein filed." But that is not sufficient. The information is not sworn to, and in order to be a sufficient information it must be sworn to by some one. This court has really never passed upon this question. (3) The defendant was cross examined by counsel employed to assist the State upon matters not brought out or referred in his examination in chief all against defendant's objection at the time. This is reversible error. R. S. 1919, sec. 4036; State v. Sharp, 233 Mo. 284; State v. Grant, 144 Mo. 56; State v. Bell, 212 Mo. 111; State v. Hathorn, 166 Mo. 229; State v. Hudspeth, 150 Mo. 31; State v. Byle, 177 Mo. 659; State v. Pfeifer, 267 Mo. 23; State v. Swearengen, 269 Mo. 185. (4) The answer of Dr. Bridges that he thought from an examination of prosecutrix's garments that "she had been mistreated" was a mere conclusion of the witness, and prejudicial error. This answer could not have been apprehended by defendant's counsel. It was a conclusion that the witness thought the charge in the information was true. The State was endeavorng to prove that prosecutrix had been mistreated. The answer would not have been more damaging if the witness had testified: "I thought she had been forcibly ravished. It assumed to decide for the jury the very fact which the law required them alone to decide. The question did not suggest the answer, and the court erred in not striking it out. State v. Evans, 267 Mo. 164. (5) The sixth instruction given for the State is a clear comment on the evidence and the giving of it is a violation of the statute, and reversible error. R. S. 1919, sec. 4038. (a) It is but a comment upon the facts and directs the minds of the jurors to such facts, giving them prominence and invades the province of the jury, against the direct command of the statute. R. S. 1919, sec. 4038; State v. Homes, 17 Mo. 380, 382; State v. Gates, 20 Mo. 404; State v. Reed, 137 Mo. 138; State v. Grugin, 147 Mo. 55, 56; State v. Higgerson, 157 Mo. 401. (b) It assumed material facts, in issue, to be true, thus invading the province of the jury, as to the comparison of the physical strength of the prosecutrix and the defendant, the condition of the clothing in evidence, and should have been refused for that reason. State v. Dillihunty, 18 Mo. 331, 332; State v. Marsh, 171 Mo. 523, 529; State v. Bonner, 178 Mo. 432; State v. Langley, 248 Mo. 554; State v. Mills, 272 Mo. 534; State v. Hilber, 149 Mo. 485.
Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
(1) The information contains a sufficient charge of rape. State v. Goodale, 210 Mo. 282; State v. Martin, 195 S.W. 732. (2) The motion to quash was properly overruled. The information is verified as required by law. (a) The information is supported by a sufficient affidavit, filed therewith, of a person competent to testify in the case. Sec. 3849, R. S. 1919; State v. Lawhorn, 250 Mo. 304; State v. Stewart, 274 Mo. 655; State v. Schnettler, 181 Mo. 185. (b) The information shows on its face that it is predicated upon the affidavit of such person. State v. Schnettler, 181 Mo. 185; State v. Hunter, 181 Mo. 339. (3) Appellant's demurrer to the evidence at the close of all the evidence in the case was properly overruled. There was substantial evidence to sustain the information. State v. Wooley, 215 Mo. 687; State v. Hardelin, 169 Mo. 585; State v. Concelia, 250 Mo. 420; State v. Taylor, 261 Mo. 228.
RAILEY, C. White and Mozley, CC., concur. Blair and Walker, JJ., concur in separate opinions.
On November 25, 1919, the Prosecuting Attorney of Clark County, Missouri, filed with the clerk of the circuit court, in vacation, an information, which, omitting caption, reads as follows:
The affidavit, mentioned in the information, without caption, reads as follows:
On December 1, 1919, defendant filed a motion to quash said information, which was overruled by the court.
On December 3, 1919, defendant was arranged, and entered a plea of not guilty.
On December 3, 1919, appellant was placed on trial before a jury.
The State's Evidence, in a general way, tended to show the following facts:
Prosecutrix Golda Hoffeditz, 19 years of age, lived with her parents on a farm. Appellant, 22 years of age, lived with his mother on a farm about two miles and a half distant from the said prosecutrix. Both lived in the vicinity of the town of Revere, Clark County, Missouri. On the night of August 23, 1919, appellant, in a Ford touring car, took prosecutrix to Farmington where they attended a picture show. They left Farmington on their trip homeward about eleven o'clock p. m., returning the same route they had gone until they reached the town of Anson at which place appellant grabbed the wheel and turned into another and different route which was hilly and not much travelled and on which route there were few, or no houses and which led through, along and over private ways and a road that was narrow with brush on either side. Here, according to the testimony of prosecutrix, appellant stopped the car, and while in the front part of said car forcibly ravished prosecutrix. He then took prosecutrix to her home arriving there about two-thirty a. m., August 24. Here appellant left prosecutrix at the gate continuing on to his home. When they got to the gate at prosecutrix's home, appeal-asked her if he could come back and prosecutrix answered, "Try it if you want to get run off the place." Appellant said if he could not come back he wanted his ring; whereupon prosecutrix returned his ring, received from appellant her ring and went upstairs and called her mother. She informed her mother of appellant's treatment of her and exhibited her torn and blood-stained clothing and wounds she sustained. When prosecutrix came down stairs to breakfast that morning she made complaint to her father. She didn't eat any breakfast. The testimony showed that she had a scratch on her chest, mark across her back and stomach, her arms were red from her wrists to her elbows. There was a mark on her wrist and her knees were discolored. Her private parts bore bruises. Dr. McConnell, the family physician, was called the afternoon of August 24, and made an examination of prosecutrix. He, in company with Dr. Bridges, made an...
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