State v. Kemp

• Decision Date: 15 February 1940
• Docket Number: No. 6119.,6119.
• Citation: 137 S.W.2d 638
• Parties: STATE OF MISSOURI, RESPONDENT, v. RUSSELL KEMP, APPELLANT.
• Court: Missouri Court of Appeals

137 S.W.2d 638

STATE OF MISSOURI, RESPONDENT, v. RUSSELL KEMP, APPELLANT.

No. 6119.

Springfield Court of Appeals, Missouri.

February 15, 1940.

Appeal from the Circuit Court of Iron County. — Hon. W.R. Edgar, Judge.

AFFIRMED.

John H. Keith for appellant.

W.R.J. Hughes for respondent.

FULBRIGHT, J.

An information was filed April 7, 1938, with Justice Ralph Keith, of Arcadia Township, Iron County, charging defendant, Russell Kemp with torturing a dog in violation of section 4168, Revised Statutes of Missouri, 1929. Defendant took a change of venue from the township and the cause was sent to Liberty township in said county, where he was tried and found guilty. From this conviction, an appeal was taken to the circuit court. A motion to quash the information was filed, for the reason that the name of a prosecutor was not indorsed thereon. The motion was overruled by the trial court, to which action defendant objected and excepted at the time. The cause was then tried by a jury and the defendant again found guilty and his punishment fixed at three months imprisonment in the county jail and a fine of $50, from which finding and judgment defendant duly appealed to this court.

The evidence, in substance, shows that the defendant was employed by H.S. Crossfield, who operated an ice plant in Ironton, Iron County; that on the day of the alleged crime defendant was in charge of the plant and was the only person working there on that occasion. On the afternoon of that day, defendant's wife, Milford Blanks and another negro by the name of Cooley, were present, all of whom were on an open porch connected with the building in which the plant was located.

Milford Blanks testified, among other things, that, "we were talking about canning a dog. Russell Kemp looked across the street and said, `there is a dog' and Cooley whistled it over to the plant. Russell Kemp went around the south side of the ice plant and brought back a can with some oil in it and set it on the platform. Q. Tell us, if you know, just exactly where the dog came to. A. Directly to the ice plant. Q. Go ahead and tell the balance of it. A. He came to the ice plant and Russell Kemp got this oil can and I tied it on the dog's tail, and then I touched a match to it, and it began to burn. Q. Tell us what else you saw. A. I saw the Cooley boy tie a string to that can. Q. Who else was there, at the time? A. Myself and Russell Kemp and Kemp's wife and him."

On cross-examination the witness testified, among other things, as follows:

"Q. When you took part in this matter, your part was tying this can to the dog's tail and someone else set the gas afire? A. Yes, sir. Q. Now you say that at that time, this defendant, Russell Kemp and his wife and Cooley, were all there at that time? A. Yes, sir. Q. And you further testified that this defendant saw this dog sitting there, and that Cooley called the dog over to the ice plant? A. Yes, sir. Q. I believe you said, at that time, the defendant was talking to you on the platform at the ice plant? A. Yes, sir. Right in front of the door there... . Q. What did Kemp do? A. He got the can. Q. After he got the can, what did he do? A. He got the can and put it there on the platform. Q. Did Kemp suggest to you to get the can? A. I didn't say that. Q. What did you say? A. I said Kemp was there at the time, and he got the can... . Q. Who first said anything about getting the can tied to the dog's tail? A. Nobody said anything about getting an oil can. Q. Who first said anything about getting any kind of a can? A. While we were there something was said about some kind of a can. Q. Who mentioned it? A. Cooley mentioned it first, I think. Q. At that time, was this defendant there on the platform? A. Yes, sir."

There was also evidence offered by the State to the effect that the defendant, Russell Kemp, and the witness, Milford Blanks, shoved the dog out of the door and there was something on its tail burning at the time. The evidence also disclosed that the dog was severely burned on the hind legs, tail and head, and that the offense occurred in Iron County.

Under the head of "Points and Authorities" defendant assigns as errors, (1) that the court erred in overruling the motion to quash the information for the reason there was no name of a prosecutor indorsed thereon. (2) That, "the court erred in giving to the jury the main instruction, in that it did not require the jury to find that the defendant had committed the offense in Arcadia Township. (3) There was no substantial evidence offered by the State to show that defendant was guilty as charged." These assignments will be considered in their order.

It will be observed that the information in the instant case was filed before a justice of the peace. In the case of State v. Flowers, 56 Mo. App. 502, the identical question with which we are confronted, was before the court. Flowers was arrested and fined upon information filed with the Justice of the Peace in Texas County, charging common assault. He took an appeal to the circuit court where the information was quashed upon his motion. The motion to quash was based on two grounds: "First, that the Justice did not enter the name of anyone as prosecuting witness upon the docket. Second, because the information was not indorsed with the name of the prosecuting witness."

The court held that the motion should not have been sustained on either ground. In the first instance, it held that the provisions of section 4358, Revised Statutes 1899 (now sec. 3444, R.S. Mo., 1929; Mo. Stat. Ann., p. 3099), was merely designed to regulate the liability for costs in cases of unsuccessful prosecution for misdemeanor, before a justice of the peace. "To that end, the justice is required to enter upon his docket the name of the injured party as prosecutor, and, in the contingencies provided for in the Statute, to adjudge the costs against him. Compliance with this Statute is in nowise, by any fair construction, a condition precedent to a valid information, nor essential to the sufficiency of an information properly framed for a misdemeanor."

In considering the second ground, the court held that there was no statute requiring a prosecuting attorney or anyone else to indorse the name of a prosecuting witness on the back of an information for a misdemeanor filed before a justice. Moreover, it was held in the case of Browne's Appeal, 69 Mo. App. 159, l.c. 166, that the requirements of section 4057, Revised Statutes of Missouri, 1889 (now sec. 3504, R.S. Mo., 1929; Mo. Stat. Ann., p. 3126) did not apply to proceedings before a justice of the peace, and cites with approval State v. Flowers, supra. For the same reasons urged in the Flowers case, section 3542, Revised Statutes of Missouri, 1929, would have no application to misdemeanor cases filed in the justice court. It is our conclusion that the trial court, with equal propriety, could have overruled the motion to quash had the information been filed directly in the circuit court.

In the case of State v. Goss, 74 Mo. 593, the defendant was convicted for cruelly and maliciously maiming, beating and torturing a certain cow, the property of defendant. From this conviction an appeal was taken and the action of the...