State v. Highley

• Decision Date: 11 March 1937
• Docket Number: No. 35307.,35307.
• Parties: STATE v. HIGHLEY.
• Court: Missouri Supreme Court

102 S.W.2d 563

STATE v. HIGHLEY.

No. 35307.

Supreme Court of Missouri, Division No. 2.

March 11, 1937.

Appeal from Circuit Court, Saline County; Charles Lyons, Judge.

Chester E. Highley was convicted of arson, and he appeals.

Reversed and remanded.

Homer E. Rich, of Marshall, for appellant.

Roy McKittrick, Atty. Gen., and Olliver W. Nolen, Asst. Atty. Gen., for the State.

COOLEY, Commissioner.

Charged with arson by information filed in the circuit court of Saline county, appellant was tried and convicted, sentenced to two years' imprisonment in the penitentiary and has appealed. We have before us only the record proper. There is no bill of exceptions here, nor does it appear that a bill of exceptions was ever allowed or filed. We have before us for review, however, the information, verdict, and judgment, which are parts of the record proper.

The information is in two counts. The first count charges the defendant with having feloniously set fire to and burned a building known as the Sweet Springs Cafe, being the property of another person. It is apparently bottomed upon section 4039, R.S.1929 (Mo.St.Ann. § 4039, p. 2844). The second count charges the felonious burning of a stock of merchandise and furnishings (personal property) situated in the Sweet Springs Cafe with intent to defraud an insurance company, the insurer of said chattels. It evidently was intended to charge violation of section 4040, R.S.1929 (Mo.St.Ann. § 4040, p. 2845). Each of said sections of the statute prescribes a minimum penalty of two years' imprisonment in the penitentiary. On its face the information charges two separate and distinct felonies. There is no showing that either count of the information was dismissed or that the state elected to proceed upon one count and abandon the other. So far as shown by the record proper (all we have before us for review), the trial proceeded upon both counts. The verdict was general, in this form: "We, the jury, find the defendant guilty of arson, as charged in the information, and assess his punishment at two (2) years in the penitentiary."

The judgment cannot stand. The information charged two felonies, each punishable by a minimum of two years' imprisonment. Waiving discussion, because here unnecessary, of the proposition that a person may not be tried, at least without his consent, for two or more separate and distinct felonies under one indictment or information, except in certain cases specially authorized by law, as, for example, burglary and larceny, the verdict herein is fatally defective and insufficient. It is impossible to tell therefrom or from the record of which of the two offenses charged the defendant was convicted.

In State v. Pierce, 136 Mo. 34, 37 S.W. 815, the defendant was charged, in two counts, with forgery and uttering a forged instrument. There was a general verdict of guilty. The judgment was reversed for that reason. This court said, 136 Mo. 34, loc. cit. 40, 37 S.W. 815, 816, "The verdict must be certain, positive, and free from all ambiguity. It must carry on its face a definite and precise meaning, and must show just what the jury intended. An obscurity which renders it at all doubtful will be fatal to it." That principle has been frequently applied where, as here, two or more offenses were charged in one indictment or information and a general verdict of guilty was returned. See State v. Karlowski, 142 Mo. 463, 44 S.W. 244, forgery and uttering forged instrument; State v. Cox (Mo.App.) 266 S.W. 734...