State v. Hurt

• Decision Date: 25 June 1926
• Docket Number: No. 26982.,26982.
• Citation: 285 S.W. 976
• Parties: STATE v. HURT.
• Court: Missouri Supreme Court

285 S.W. 976

STATE v. HURT.

No. 26982.

Supreme Court of Missouri, Division No. 2.

June 25, 1926.

Appeal from Circuit Court, Cooper County; H. J. Westhues, Judge.

Orville T. Hurt was convicted of larceny of an automobile and he appeals. Reversed and remanded.

D. W. Shackleford, of Jefferson City, and W. V. Draffen, of Boonville, for appellant.

North T. Gentry, Atty. Gen., and James A. Potter, Asst. Atty. Gen., for the State.

WALKER, P. J.

The defendant was charged by information in the circuit court of Cooper county with the larceny of an automobile. Upon a trial he was convicted and sentenced to two years' imprisonment in the penitentiary.

I. A fatally defective information renders a statement of the facts unnecessary. The defect consists in the failure of the information to state the legal character of the Ford Motor Company, the alleged owner. Whether it is a partnership or a corporation is not stated. We have held in a number of cases that this defect in an indictment or information will not sustain a judgment of conviction.

The reason for this rule was well stated by Judge Gantt, in State v. Jones, 168 Mo. 398,

68 S. W. 566, cited with approval in State v. Henschel, 250 Mo. loc. cit. 269. 157 S. W. 311, to this effect:

"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 (:d the defect in the indictment in this court for the first time"—citing cases.

II. As this case must be reversed, it is proper that an erroneous instruction given by the court should be considered to avoid a like error in the future. The instruction referred to is numbered 5. Its defect consists in not stating the minimum punishment authorized to be inflicted. It told the jury if they found the defendant guilty they should assess his punishment at imprisonment in the penitentiary for a period not exceeding five years. The jury assessed the...