State v. Harris

• Decision Date: 12 February 1910
• Citation: 225 Mo. 639,125 S.W. 460
• Parties: STATE v. HARRIS.
• Court: Missouri Supreme Court

125 S.W. 460

225 Mo. 639

STATE v. HARRIS.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

CRIMINAL LAW (§ 1086) — APPEAL AND ERROR — RECORD — ARRAIGNMENT AND PLEA.

A conviction must be reversed, where the record fails to show an arraignment and the entry of a plea.

Appeal from Circuit Court, Dunklin County; J. L. Fort, Judge.

W. J. Harris was convicted of rape, and he appeals. Reversed.

W. S. C. Walker, for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

FOX, J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of the Dunklin county circuit court, convicting the defendant of the crime of rape.

On October 5, 1905, W. R. Hall, the then prosecuting attorney of Dunklin county, filed in the circuit court of said county an information charging defendant with the crime of rape on one Rosa Harris, alleged to be the daughter of defendant. The record further discloses that a capias was thereafter issued, defendant was arrested, and on December 1, 1905, waived formal arraignment and entered a plea of not guilty. On December 2, 1905, defendant was tried for said crime, and by a jury was found guilty, and his punishment assessed at 20 years' imprisonment in the state penitentiary. On December 7, 1905, defendant filed a motion for a new trial, and said motion was overruled on November 28, 1906. On November 28, 1906, defendant filed a motion in arrest of said judgment, and said motion in arrest was, on said date, sustained. On November 28, 1906, said prosecuting attorney filed a new information, charging appellant with said crime. In the first information filed the prosecuting attorney failed to charge that said information was filed "upon his oath of office," and for that reason it was evidently held to charge no offense against defendant. After the filing of the second information, a second capias was issued, defendant was arrested, and on May 11, 1907, was tried by a jury, found guilty, and his punishment assessed at 25 years' imprisonment in the state penitentiary. The record does not show an arraignment of defendant on the second information.

With these disclosures of the record, it is unnecessary to make a statement of the evidence developed upon the trial, for the reason that, in the absence of an order of record showing an arraignment of the appellant upon the information upon which he was tried, the judgment of the circuit court must be reversed. We...