State v. Jack
| Citation | 209 S.W. 890 |
| Decision Date | 04 March 1919 |
| Docket Number | No. 21309.,21309. |
| Parties | STATE v. JACK. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.
Oliver Jack was convicted of embezzlement, and appeals. Affirmed.
J. J. Cope, of Salem, for appellant.
Frank W. McAllister, Atty. Gen., and George V. Berry, Sp. Asst. Atty. Gen., for the State.
The defendant was found guilty of embezzlement in the circuit court of Dent county, and sentenced to two years in the penitentiary; from that judgment he appealed.
I. The appellant complains of the information upon which the defendant was tried, claiming that it charges two offenses, the crime of embezzlement and that of larceny. The information substantially follows the statute, section 4550, R. S. 1909, defining embezzlement by agent. In addition to the words charging the offense, the information alleges that the defendant feloniously and "unlawfully did steal, take, and carry away" the money which he was charged with embezzling. That superfluous allegation was in the information in the case of State v. Shour, 196 Mo. 202, loc. cit. 206, 95 S. W. 405, and also in the case of State v. Skinner, 210 Mo. 373, loc. cit. 377, 109 S. W. 38, in each of which the information was held to properly charge the crime of embezzlement.
II. Appellant assigns error to the alleged failure of the state to accord the defendant the right of a preliminary hearing upon the charge upon which he was tried. Section 5056, R. S. 1909, as amended by the act of 1913 (Acts of 1913, p. 225), provides that a defendant, charged "with any felony," shall be accorded the right of a preliminary examination before some justice of the peace before any information shall be filed by the prosecuting attorney.
No complaint was made by the defendant, before or during the trial, that the right to a preliminary hearing had not been accorded him. He raised the question for the first time in his motion for new trial, wherein he alleged that the complaint filed before the justice of the peace and sworn to by the prosecuting witness charged the defendant, Oliver Jack, with having committed the offense, describing him as a person not over the age of 16 years.
The information filed by the prosecuting attorney in the circuit court, upon which the defendant was tried, charges that the defendant was an agent of the prosecuting witness and not a person under the age of 16 years, charging the offense in the language of the statute. The transcript of the justice of the peace before whom the complaint was lodged recites that the complaint filed charged Oliver Jack, a person "over the age of 16 years," with embezzlement as agent; that he was arrested, brought before the justice, waived preliminary examination, and gave bond for his appearance to the circuit court. The warrant upon which the defendant was arrested and brought before the justice recites the defendant was charged with embezzlement as an agent, being "over the age of 16 years." The amount alleged in the complaint to have been embezzled was $625.
The state, in opposition to a motion for new trial, presented the affidavit of the attorney who drew the complaint. In that affidavit the attorney swore that, when that complaint was drawn and filed before the justice of the peace, it stated that Oliver Jack was a person not under the age of 16 years, and the word "under" had been erased and the word "over" inserted in place thereof, at what time he did not know.
A counter affidavit was filed by defendant to the effect that the complaint was in the form in which it appears in the record at the time the defendant was arrested and arraigned before the justice of the peace. Possibly the trial court decided, on that state of the record and the evidence, that the complaint was in the form required by statute when appellant was bound over. We can determine the point in dispute without considering that question.
By waiving his right to preliminary hearing before the justice of the peace, defendant waived all irregularities in the form of the complaint which was filed before the justice. State v....
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