State v. Hodges

• Decision Date: 18 February 1922
• Docket Number: No. 23052.,23052.
• Parties: STATE v. HODGES.
• Court: Missouri Supreme Court

237 S.W. 1000

STATE v. HODGES.

No. 23052.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

George Hodges was convicted of grand larceny, and he appeals. Affirmed.

Appellant was convicted of grand larceny in the circuit court of Lawrence county. A verified information was filed September 6, 1920, and, omitting caption and signature, is as follows:

"James A. Potter, prosecuting attorney within and for the county of Lawrence and state of Missouri, acting herein under his oath of office and upon his knowledge, information, and belief, informs the court that George Hodges, late of said county, on or about the 24th day of June, A. D. 1920, at said county of Lawrence and state of Missouri, one neat three-year-old steer, of the value of $75, of the goods, chattels, and personal property of one J. C. Wilson, then and there being, feloniously did steal, take, and carry away, against the peace and dignity of the state."

Thereafter defendant was formally arraigned and entered his plea of not guilty, whereupon a jury was impaneled to try said charge and, upon submission and consideration, on the 17th day of September, 1920, returned into open court the following verdict:

"We, the jury, find the defendant guilty as charged, and do assess his punishment at imprisonment in the penitentiary for two years.

                              "R. H. Fite, Foreman."
                

On the same day defendant filed his motions for a new trial and in arrest of judgment, both of which were overruled. Thereupon the court rendered judgment and pronounced sentence upon the defendant in conformity to the verdict.

Defendant filed his application and affidavit for an appeal immediately that his motions were overruled, and an appeal was granted him to this court. The record does not show that defendant ever filed his bill of exceptions, but, on the contrary, a certificate from the clerk of the circuit clerk of Lawrence county, dated September 17, 1921, recites that no bill of exceptions was filed in said cause.

Robert Stemmons, of Mt. Vernon, and T. C. Tadlock, of Joplin, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.

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

1. There is nothing for review except the record proper, as no bill of exceptions was filed in the court below. Under the law it becomes our duty, however, to consider the record proper (State v. Gardner, 250 Mo. 426, 157 S. W. 84; State v. Goldman, 199 Mo. App. 416, 203 S. W. 471. Section 4106, R. S. 1919, provides that

"No assignment of error, or joinder in error, shall be necessary upon any appeal or writ of error, in a criminal case, issued or taken pursuant to the foregoing provisions of this article; but the court shall proceed upon the return thereof without delay, and render judgment upon the record before them."

We should ascertain, therefore, whether the information is sufficient and whether the judgment entered in said cause is authorized by law.

2. The information heretofore set out contains every necessary element required to charge the crime of grand larceny, and is sufficient, both as to form and substance (section 3312, R. S. 1919; 25 Cyc. 83;...