State v. Henschel
| Decision Date | 20 May 1913 |
| Citation | 157 S.W. 311,250 Mo. 263 |
| Parties | THE STATE v. OTTO HENSCHEL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Montgomery Circuit Court. -- Hon. Bernard H. Dyer Special Judge.
Reversed and remanded.
E Rosenberger & Son, J. V. Nebel and James F. Ball for appellant.
(1) Notwithstanding his plea of guilty, a defendant is entitled to his appeal or writ of error, and if no crime is charged in the information, then none is confessed by pleading guilty thereto. The only effect of such a plea is to admit the truth of whatever is sufficiently charged. State v. Levy, 119 Mo. 434; State v. Rosenblatt, 185 Mo. 114; State v. Kelley, 206 Mo. 685. (2) This conviction grows out of the filing of a verified information in two counts, jointly charging appellant and another with the crimes of burglary and larceny and receiving stolen property. A severance was granted; the other defendant, who is a man of mature age, went to trial before a jury and was triumphantly acquitted. The defendant, who is only a lad nineteen years of age, upon the advice of counsel entered a plea of guilty and the State dismissed as to the second count, which charged receiving stolen property, and appellant was sentenced under the count which charged burglary and larceny. If any mistake was committed on the part of the appellant in this case, the blame rests solely upon his counsel. When the appellant entered his plea of guilty he was advised by his counsel that the information charged no offense and that he was confessing to nothing by entering a plea of guilty thereto. When appellant's counsel advised appellant to enter his plea of guilty they had before them the following cases: State v. Jones, 168 Mo. 402; State v. Horned, 178 Mo 59; State v. Jones, 194 Mo. 268; State v. Kelley, 206 Mo. 685; State v. Clark, 223 Mo. 48. The same doctrine is announced in the cases of State v. Boehler, 148 Mo.App. 614, and State v. Murphy, 147 S.W. 520. In view of the fact that the defendant entered his plea of guilty on the advice of his counsel, who had before them the cases above cited and relied thereon it would now be working an injustice and a cruel hardship upon appellant to overrule the long line of authorities just quoted and compel him to serve a term of four years in the penitentiary without permitting a jury to pass on his guilt or innocence. Especially is this true when we take into consideration that his codefendant, who was prosecuted upon the same charge, went before a jury and was acquitted. The attorney -- general concedes that the cases just above cited, and relied upon by us when we advised the defendant that by entering a plea of guilty he was confessing nothing, announce the doctrine "that it is necessary in an information, or indictment, to charge that the car broken into and entered, and the property stolen, was the property of a copartnership, an individual, or corporation." But the attorney-general suggests that on the authority of the old case of State v. Shields, 89 Mo. 259, the cases just cited and relied upon ought to be overruled. The case of State v. Shields has never been followed or referred to at any time by this court, while in all of the cases cited herein and relied upon by defendant when he entered his plea of guilty, this ruling of law has been firmly established in this State. In State v. Horned, 178 Mo. 59, the attorney-general conceded the information (one similar to this one) was bad. Had counsel for appellant not placed implicit reliance upon the previous rulings of this court on the question under consideration, and had we not believed that this court would follow its former rulings, certainly we would not have been so fool-hardy or foolish as to have permitted a lad to enter a plea of guilty, when the evidence against him was very meager, but we would have insisted upon a trial before a jury, feeling that the innocence of our client could be easily shown, and that he would have been fully vindicated. The appellant has never had his day in court. He has never faced a jury, and in view of the authorities cited and relied upon by appellant when he entered his plea of guilty, this court ought not even consider setting aside a long line of established authorities and reaffirm the doctrine laid down in an obsolete case which has long since been forgotton by the bench and bar of Missouri, and which this court and our other appellate courts have refused to follow.
Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
In State v. Shields, 89 Mo. 259, Judge Norton said To this we add: State v. Fisher, 40 N. J. L. 170; Hatfield v. State, 76 Ga. 500; 6 Cyc. 214; State v. Sims, 25 Nev. 444; People v. Henry, 77 Cal. 445; People v. Rogers, 81 Cal. 209; Burke v. State, 34 Ohio St. 79; Hamilton v. State, 34 Ohio St. 82; Fisher v. State, 40 N. J. L. 169; State v. Shields, 89 Mo. 259; 3 Ency. Pl. & Prac. 757, 761. We find no fault with the ruling that the name of the owner must be alleged, and the cases from other jurisdictions, as well as the decision of Judge Norton in the Shields case, supra, likewise hold that this is necessary, but after doing this, and describing the owner by lawful name, we insist that further particularization, or more minute description of the owner is not required by good pleading. Would it not be just as reasonable to require, in charging the ownership to be in an individual, that it further describe him as a "person then and there living and being." Such matters are merely descriptive and are not essential, but really should be treated as surplusage. Besides, we have Sec. 5115, R.S. 1909, which provides that no indictment or information shall be deemed invalid, nor shall the trial judgment, or other proceedings thereon be set aside or in any manner affected because of any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Some of the cases from other jurisdictions, and which we have heretofore cited, apply statutes of this character to this identical proposition, and hold that, under their provisions, an indictment is not invalid because of failure to allege that the owner of property is a corporation or partnership. This court has frequently applied these statutes to similar questions, but in the five cases relied upon by appellant, the court seems to have overlooked them. We respectfully submit that the failure to allege whether the Wabash Railroad Company was a corporation or a copartnership could in no manner tend to the prejudice of appellant's substantial rights. The principal reason for requiring the ownership of the property to be stated in an indictment for burglary is for the purpose of showing on the record that the house alleged to have been broken into was not the property of the accused, in as much as one cannot commit the offense of burglary by breaking into his own house. We respectfully submit that an additional particularization of the owner as a "corporation" or "copartnership" is not necessary in order to show on the record that this property was not the property of appellant. The proposition that this was the property of appellant is completely and fully negatived by the allegations that he "feloniously and burglariously forcibly did break and enter with the intent then and there and thereby feloniously and burglariously to steal, take and carry away, etc.," and that he did then and there feloniously and burglariously steal, take and carry away with the intent then and there to deprive the owner of the use thereof, and to convert the same to his own use." The only other reason for the statement of ownership is to so identify the offense as to protect the accused from a second prosecution for the same offense. Concerning the reasons for the statement of ownership, see: State v. Trapp, 17 S.C. 467. After the corporate name of the owner is alleged, we insist that this additional description or particularization is not necessary for this purpose, and does not even tend to accomplish this end, and this for the following reasons: If the owner is an individual, the statement of his name alone is sufficient. If the owner is a partnership, the ownership is laid and alleged in the individual names of the partners, and must be. It is not even necessary to set out the style or name of the partnership. 6 Cyc. 215, and cases cited. Missouri cases heretofore cited. If the owner is a corporation, the ownership must be laid in the corporation by its corporate name. From this it follows that if any name is alleged in an indictment, other than the name of an individual or individuals, the defendant knows (since he is presumed to know the law), that the owner is neither an individual nor a partnership, but is a corporation. There is absolutely no owner which, under the law, can be referred to by any name other than that of individuals, except a corporation, and when a name is used indicating upon its face, as does the name of "Wabash Railroad Company," that it is not the name of an...
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