State v. Futrell, 31321.

• Court: United States State Supreme Court of Missouri
• Citation: 46 S.W.2d 588
• Docket Number: No. 31321.,31321.
• Parties: THE STATE, Appellant, v. DR. H.B. FUTRELL.
• Decision Date: 17 February 1932

46 S.W.2d 588 THE STATE, Appellant,
v.
DR. H.B. FUTRELL. No. 31321. Supreme Court of Missouri. Division Two, February 17, 1932.

Appeal from Cape Girardeau Circuit Court. — Hon. Frank Kelley, Judge.

Appeal from an order granting a new trial.

REVERSED AND REMANDED (with directions).

Stratton Shartel, Attorney-General, C.A. Powell, Assistant Attorney-General, and S.P. Dalton, Prosecuting Attorney from Cape Girardeau County, for appellant.

(1) The information charges the "felony of abortion." It follows the language of the statutes (Sec. 3991, R.S. 1929), and is therefore sufficient. State v. Harmon, 278 S.W. 733; State v. Hawkins, 210 S.W. 4; State v. Van Houten, 37 Mo. 358; 31 C.J. 714, sec. 268, n. 92; State v. Crews, 128 N.C. 581, 38 S.E. 293; People v. Wah Hing, 15 Cal. App. 195, 114 Pac. 416; Thomas v. State, 156 Ala. 166, 47 So. 257; State v. Bly, 99 Minn. 77, 108 N.W. 833. (2) In abortion cases it is not necessary to name the instrument or drug used nor to aver how the one was used or the other administered. Thomas v. State, 156 Ala. 166, 47 So. 257; People v. Wah Hing, 15 Cal. App. 202, 114 Pac. 416; State v. Crews, 128 N.C. 581, 38 S.E. 293; State v. Bly, 99 Minn. 77, 108 N.W. 833. (3) Where property is merely incidental and not an essential element of the crime which is charged in the information, it is not necessary to allege with particularity the description of the property. State v. Hudson, 285 S.W. 735. (4) Where defendant is sufficiently informed of the charge without more particularity and description, the information is sufficient. State v. Hudson, 285 S.W. 735; State v. Ferris, 16 S.W. (2d) 99. (5) The description of instruments used, method used, and place used are not descriptive of the offense of "felony of abortion," but are matters of evidence, and need not be pleaded. 31 C.J. 672, sec. 193, n. 44; State v. Becker, 248 Mo. 562. (6) State can appeal where judgment is arrested or set aside or where new trial is granted on account of the insufficiency of the information. Sec. 3753, R.S. 1929; State v. Carson, 18 S.W. (2d) 457.

FITZSIMMONS, C.

Defendant was charged by information with the felony of abortion. Upon trial he was found guilty and his punishment was fixed at a fine of $1,000. The trial court sustained defendant's motion for a new trial and overruled the State's later motion to set aside the order sustaining the motion for a new trial. The prosecuting attorney then filed his application and affidavit for appeal, and appeal to this court was granted.

I. The right of the State to take an appeal is first to be determined. Defendant's motion for a new trial gave as some of the reasons therefor that the information failed to charge facts sufficient to advise defendant of the nature of the accusation against him; that the information failed to state or plead facts sufficient to constitute a crime against the laws of Missouri, the absent statements being specified; that the information is vague, indefinite and uncertain in particulars stated. The trial court, in its order sustaining the motion for a new trial, quoted from the opinion of this court in the case of State v. Ferris, 16 S.W. (2d) 90, l.c. 99, to the effect that allegations of certainty to a common intent or reasonable certainty are all that are required in an information charging statutory offenses, so that "the accused may be enabled to know what he has to meet that he may prepare his defense and

46 S.W.2d 589

authorize a conviction or acquittal to be pleaded in bar to another prosecution for the same offense." The order of the trial court further said:

"The information at bar does not meet the requirements of the rules as stated in the above case, and the judgment is arrested for the facts stated in the information are not sufficient to constitute any offense under the laws of this State, as it does not allege the nature or kind of instrument used, how used or on what part of the body used, all of which must be proven and if necessary to prove is necessary to allege.

"For the foregoing reasons and for the reason the court permitted the State to prove the kind of instrument and how and where used over the objections of the defendant, the motion for a new trial is sustained." In the record proper appear the information, arraignment, plea, trial and verdict, motion for a new trial, order of court sustaining same, motion to vacate and order overruling the same, and the application for and granting to the State of an appeal. The prosecuting attorney also filed a bill of exceptions which contains the testimony of two witnesses, the instructions, verdict, defendant's motion for a new trial, order sustaining this motion, the State's application and affidavit for appeal, and the order granting the appeal. The record, therefore, is sufficient to preserve the point upon which the State relies for a reversal.

Section 3752, Revised Statutes 1929, provides that the State, in any criminal prosecution, shall be allowed an appeal only in the cases and under the circumstances mentioned in the next section. And Section 3753 (the next), provides that "when any indictment or information is adjudged insufficient upon demurrer or exception, or where judgment thereon is arrested or set aside," the court, in certain circumstances, may hold the defendant to answer a new indictment or information, "or, if the prosecuting attorney prays an appeal to an appellate court, the court may, in its discretion, grant an appeal." Section 3736, Revised Statutes 1929 (Amended Laws 1925, p. 194), abolished the motion in arrest of judgment and provided that all the rights which could have been saved by defendants in a motion in arrest may be saved in a motion for a new trial. It thus appears that the motion for a new trial serves a double purpose. [State v. Carson, 18 S.W. (2d) 457, l.c. 458.] Section 4080, Revised Statutes 1919, gave to defendants in criminal cases the right to file a motion in arrest of judgment upon three grounds appearing upon the face of the record, one of which was that the facts stated do not constitute a public offense. And in the state of the law as it then was, defects apparent on the face of the record could only be reached by a motion in arrest. [State v. Gamma, 215 Mo. 100, 114 S.W. 619.] But the Act approved May 1, 1925 (Laws 1925, p. 194), worked changes and reforms in criminal procedure. Among them was the repeal of Section 4080, Revised Statutes 1919 and the enactment of what is now Section 3736, Revised Statutes 1929. From this it follows that if, in a criminal case, an order of court sustaining the motion for...