State v. Henschel

• Decision Date: 20 May 1913
• Citation: 157 S.W. 311
• Parties: STATE v. HENSCHEL.
• Court: Missouri Supreme Court

157 S.W. 311

STATE v. HENSCHEL.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

BURGLARY (§ 22)—LARCENY (§ 32)—INFORMATION —OWNERSHIP—CORPORATION.

An information, charging the defendant with burglary and larceny committed in a box car of a railroad company, which does not allege whether the company is a corporation or a co-partnership, is fatally defective, in substance as not informing the defendant of the ownership of the car entered, or of the goods alleged to have been stolen, even in view of section 5114, Rev. St. 1909, providing that a variance in name between the allegations and proof is not ground for acquittal, unless prejudicial to the defendant, and section 5115, Rev. St. 1909, providing that an information shall not be held bad for certain specified defects or for any other defect which does not prejudice the substantial rights of the defendant, but providing that it shall not be construed to render valid any indictment which does not fully inform the defendant of the offense with which he is charged.

Brown, P. J., and Roy, C., dissenting.

Appeal from Circuit Court, Montgomery County; Jas. D. Barnett, Judge, and Bernard H. Dyer, Special Judge.

Otto Henschel pleaded guilty to an information charging him with burglary and larceny, and appeals from the judgment imposing sentence. Reversed and remanded.

Defendant entered his plea of guilty to an information charging him with the burglary of a car of the Wabash Railroad Company and the larceny of certain goods belonging to the company contained in said car. The court assessed defendant's punishment for the crime of burglary at two years in the penitentiary, and for the crime of larceny at two years in the penitentiary, and entered judgment sentencing defendant to four years in the penitentiary. The information fails to allege whether the railroad company is a corporation or copartnership, and, if a copartnership, fails to state the names of the copartners. Defendant perfected an appeal to this court, and assigns as error the above-mentioned omission.

E. Rosenberger & Son, J. V. Nebel, and James F. Ball, all of Montgomery City, for appellant. Elliott W. Major, Atty. Gen., and Charles G. Revelle, Asst. Atty. Gen., for the State.

WILLIAMS, C. (after stating the facts as above).

In the case of State v. Jones, 168 Mo. 398, 68 S. W. 506, it was held that a similar omission rendered the information bad. In that case Judge Gantt, speaking for the court, said: "It has always been necessary to allege and prove the ownership of the house charged to have been burglarized and the ownership of chattels alleged to have been stolen. 2 East, P. C. 650. Where ownership is laid in a corporation, the fact of the incorporation should be alleged, and this is not affected by the fact that proof of the existence of the corporation de facto will sustain the charge. As nothing is to be left to intendment, the defendant is entitled to know whether the state intends to show ownership in a firm composed of individuals or in a corporation. In this case he raised the objection in his motion in arrest, but it has often been ruled that he may take advantage of the defect in the indictment in this court for the first time. State v. Patterson, 159 Mo. 98, 59 S. W. 1104; Wharton's Crim. Law, §§ 1828, 1833; 2 Russell on Crimes, p. 100; Wallace v. People, 63 Ill. 451; 1 Bishop's Crim. Prac. (3d Ed.) § 682; State v. Mead, 27 Vt. 722; Cohen v. People, 5 Parker, Cr. R. [N. Y.] 330; 2 Archbald's Crim. Pl. 359; White v. State, 24 Tex. App. 231 [5 S. W. 837, 5 Am. St. Rep. 879]; Thurmond v. State, 30 Tex. App. 539 ; McCowan v. State, 58 Ark. 17 . There are cases to the contrary in other states, but in the absence of a statute we are relegated to the common law, and we hold the information bad in substance in failing to allege the names of the copartners if the Drysdale-Ulen Hardware Company was a firm, and if a corporation in not alleging it was a corporation."

In the case of State v. Horned, 178 Mo. 59, 76 S. W. 953, the information charged that the defendant burglarized "the depot of the Mississippi River & Bonne Terre Railway," and the case was reversed and remanded because the information failed to allege that said railway was a corporation. In that case Judge Fox says: "It may be ever so notorious that the railway mentioned was a corporation, yet that would not supply the necessary allegation that it was a corporation, in the information or indictment. The general reputation and notoriety that it was a corporation would be sufficient proof of the existence of the corporation, by virtue of the provisions of section 2634, Revised Statutes 1899; but, before that proof would be admissible, there must be an appropriate allegation in the information upon which to base it."

In the case of State v. Kelley, 206 Mo. 685, 105 S. W. 606, 12 Ann. Cas. 681, the information charged the defendant with the burglary of a car of the St. Louis & San Francisco Railway Company and the larceny of property therein. The defendant in that case entered a plea of guilty, but the information was held to be fatally defective because it failed to allege that said railway company was a corporation or copartnership.

In the case of State v. Clark, 223 Mo. 48, 122 S. W. 665, 18 Ann. Cas. 1120, the defendant was charged with the larceny of certain goods "of the Chicago, Burlington & Quincy Railway Company," and the information was held to be "fatally defective, in not charging whether the alleged owner of the property was a corporation or a copartnership, and, if a copartnership, in not giving the individual members thereof."

We cannot admit the contention of the Attorney General that the above cases should be overruled on the authority of State v. Shields, 89 Mo. 259, 1...