State v. Jablousky

• Decision Date: 14 December 1912
• Citation: 169 Mo. App. 238,152 S.W. 390
• Parties: STATE v. JABLOUSKY.
• Court: Missouri Court of Appeals

152 S.W. 390

169 Mo. A. 238

STATE v. JABLOUSKY.

St. Louis Court of Appeals. Missouri.

December 14, 1912.

1. FENCES (§ 28) — REMOVAL OF OBSTRUCTION — ELEMENTS OF OFFENSE.

Where defendant's father had secured an injunction against the prosecuting witness from maintaining a fence or obstruction, defendant's act in severing and destroying the fence, under the direction of his father, who claimed a right to remove it was not wanton or with evil intent, and was no violation of Rev. St. 1909, § 4598, making it an offense to willfully and maliciously sever and destroy a fence.

2. FENCES (§ 28) — REMOVAL OF OBSTRUCTION — CRIMINAL RESPONSIBILITY — EVIDENCE.

In a prosecution under Rev. St. 1909, § 4598, for willfully and maliciously destroying a fence, evidence as to the pendency of an action to enjoin the prosecuting witness from maintaining the fence destroyed was admissible.

3. CRIMINAL LAW (§ 1134) — APPEAL — SCOPE OF REVIEW — EXCLUDED EVIDENCE.

Where the Court of Appeals holds that the exclusion of certain offered testimony was erroneous, it may examine the testimony itself, as if in the case.

4. INDICTMENT AND INFORMATION (§ 125) — DUPLICITY — JOINDER OF OFFENSES IN ONE COUNT.

An information, combining in one count the separate offenses of severing a fence and of willfully and maliciously destroying a fence, as defined by Rev. St. 1909, § 4598, was bad for duplicity, since, while several offenses of like degree may be combined in the same information, they cannot be properly joined in one count.

5. COSTS (§ 298) — CRIMINAL PROSECUTION — LIABILITY OF PROSECUTING WITNESS — STATUTE.

Under the express provision of Rev. St. 1909, § 5063, a private person, making an affidavit on which an information is based, is designated as the prosecuting witness, and, in case the prosecution fails, is liable for the costs in the case, not otherwise adjudged by the court.

Appeal from St. Louis Court of Criminal Correction; V. H. Falkenhainer, Judge.

Charles Jablousky, Jr., was convicted of willfully and maliciously severing and destroying a fence, and he appeals. Reversed and remanded, with directions to discharge defendant.

Carpenter & Walz, for appellant. Howard Sidener, of St. Louis, for the State.

REYNOLDS, P. J.

The information in this case purports to be based upon section 4598, R. S. 1909. It charges that defendant and one Walz did, willfully, unlawfully and maliciously and on a day named, "sever from the fence, inclosing and separating the realty and property of Bernhard Wussler from adjacent property, material of which said fence was formed and did willfully, unlawfully and maliciously pull down, injure and destroy a fence and part thereof inclosing as aforesaid the land of Bernhard Wussler and separating the same from adjacent property, said fence and the property on which it was erected being that of said Bernhard Wussler, in which said August Walz and Charles Jablousky then and there had no interest, contrary to the form of the statute," etc. On a trial before the court, a jury having been waived, defendant Jablousky was convicted and defendant Walz acquitted. A fine of $10 was imposed against Jablousky, from which, after filing motions for a new trial and in arrest, he has duly perfected appeal to this court....