State v. Eslinger, 42143

• Decision Date: 12 February 1951
• Docket Number: No. 42143,No. 2,42143,2
• Citation: 361 Mo. 1062,238 S.W.2d 424
• Parties: STATE v. ESLINGER
• Court: Missouri Supreme Court

Page 424

238 S.W.2d 424

361 Mo. 1062

STATE v. ESLINGER.

No. 42143.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1951.

Rehearing Denied March 12, 1951.

Motion to Transfer to Court En Banc Denied April 9, 1951.

Paul E. Carver, Neosho, for appellant.

J. E. Taylor, Atty. Gen., Walter G. Stillwell, Asst. Atty. Gen., for respondent.

TIPTON, Judge.

An information was filed in the circuit court of Newton County, Missouri, charging the appellant with stealing cattle. A change of venue was granted and the cause was sent to the circuit court of Lawrence County where the appellant was convicted of grand larceny and his punishment fixed at two years in the state penitentiary.

Appellant's first assignment of error is that the information is fatally defective and will not sustain a judgment because it does not allege that the taking was done feloniously.

The essential parts of the information are 'that Jack Eslinger on the 14th day of June, 1948, at the said County of Newton, did then and there unlawfully certain goods, chattels, and personal property towit: A brownish red Jersey calf, 4 months old, of the value of $50.00, and a pale red steer, 2 years old, of the value of $50.00 of the total value of $100.00 of the goods and personal property of one Kenneth Boyer, then and there being did take, steal and carry away, against the peace and dignity of the State.'

Section 560.155 of the Revised Statutes of 1949 defines grand larceny as follows: 'Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, rights in action, or other personal property, or valuable thing whatsoever of the value of thirty dollars or more, or any horse, mare, gelding, colt, filly, ass, mule, sheep, goat, hog or neat cattle, belonging to another, shall be deemed guilty of grand larceny; and dogs shall for all purposes of this chapter be considered personal property.'

It is to be noted that this statutory definition requires the stealing to be feloniously done.

In the case of State v. Bennett, 297 Mo. 190, 248 S.W. 924, we held an information was fatally defective that failed to allege that the property described therein was feloniously stolen.

In State v. Pryor, 342 Mo. 951, 119 S.W.2d 253, 254, the cases of this state are reviewed and in that case we held that 'The word 'feloniously' is indispensably necessary in all indictments for felony', except in cases involving the violation of the intoxicating liquor statutes. This for the reason that 'No such word as feloniously, unlawfully, or knowingly is used in the [liquor statute] section. The act of selling is made a felony regardless of the purpose or manner of the act.'

'As a general rule the act constituting a crime must be characterized and alleged to have been done 'feloniously.' The characterization is indispensable in common law crimes and crimes requiring a felonious intent or crimes so characterized or described by statute, such as grand larceny or burglary and larceny. State v. Pryor, 342 Mo. 951, 119 S.W.2d 253; State v. Bennett, 297 Mo. 190, 248 S.W. 924. 'Feloniously' or words of similar import (State v. Nienaber, 347 Mo. 615, 148 S.W.2d 1024) are necessary when without the magic words the acts describe a misdemeanor rather than a felony as in many instances of felonious assault. State v. Null, 355 Mo. 1034, 199 S.W.2d 639. The characterization is necessary in certain statutory crimes which require that the act be knowingly, wilfully or fraudulently done as knowingly casting more than one ballot or making a false count and return in an election. State v. Siegel, 265 Mo. 239, 177 S.W. 353; State v. McGrath, 228 Mo. 413, 128 S.W. 966. In the Liquor Control Act the offense of selling intoxicating liquor without a license is declared a felony but the word is not used to characterize the offense. The mere violation or act of selling intoxicating liquor without a license is made a felony regardless of the purpose, manner or intent of the act. The violation of the statute in and of itself constitutes a felony.' State v. Updegraff, Mo.Sup., 214 S.W.2d 22, loc. cit. 24.

Our grand larceny statute requires the stealing to be done feloniously and, therefore, under the authorities above cited this information is fatally defective.

Defects in the information may be raised for...