State v. Madden

• Citation: 24 S.W.2d 1003,324 Mo. 877
• Decision Date: 19 February 1930
• Docket Number: 30170
• Parties: The State v. E. F. Madden, Appellant
• Court: United States State Supreme Court of Missouri

24 S.W.2d 1003

324 Mo. 877

The State v. E. F. Madden, Appellant

No. 30170

Supreme Court of Missouri

February 19, 1930

Appeal from Dade Circuit Court; Hon. C. A. Hendricks Judge.

Reversed and remanded.

Edwin Frieze for appellant; Neale, Newman & Turner of counsel.

(1) The court erred in placing defendant upon his trial without the filing of an information by the prosecuting attorney. Sec 3849, R. S. 1919; State v. Kelm, 79 Mo. 515; State v. Hendricks, 87 Mo.App. 17. (2) The court erred in entering judgment against the defendant without giving him an opportunity to file a motion for new trial and without giving him opportunity to show cause why judgment should not be pronounced against him. Secs. 4057, 4058, R. S 1919. (3) The court erred in entering judgment sentencing defendant to the penitentiary without the cause first having been instituted by the filing of an information. Sec. 3849, R. S. 1919; State v. Kelm, 79 Mo. 515; State v. Hendricks, 87 Mo.App. 17. (4) The court erred in rendering judgment against the defendant and sentencing him to the penitentiary upon a verdict finding Keet Madden instead of E. F. Madden guilty. Kelly's Criminal Law & Practice (3 Ed.) 136, 137, 358, 360; State v. McBride, 19 Mo. 239.

Stratton Shartel, Attorney-General, for respondent; G. C. Weatherby of counsel.

(1) There being no motion for a new trial, only the record proper is here for review. State v. Baker, 274 S.W. 359; State v. Turner, 273 S.W. 739. The record does not show any request made of the court to withhold judgment until the motion could be filed. And it is not claimed by defendant that any such request was in fact made. The trial court should not be convicted of error under such circumstances. State v. Baird, 297 Mo. 219. (2) The prosecuting attorney on or about October 24, 1928, filed with the justice an information against defendant charging the transportation of liquor. On or after October 30, 1928, he filed with the same justice another information in three counts, each charging a violation of the liquor laws. Following this and on November 10, 1928, said justice lodged with the clerk of the circuit court this information, together with the warrant issued by him when the first information was filed. The second information is endorsed "amended complaint." It is evident from this the prosecutor filed an amended complaint before the justice, and when the justice sent up the transcript of the proceedings before him he returned the amended complaint, so that at the trial that complaint or information was lodged with the circuit clerk and was in fact the information upon which the trial was had. This meets the requirement that a formal charge must be filed advising the defendant of what he is called upon to defend. That all parties treated the amended complaint as filed and as the one containing the charge on which defendant was to be tried is apparent from the fact the defendant filed a motion to require the state to elect upon which count it would proceed, which was sustained. Also an order was entered dismissing as to the third count. Again the entry showing the arraignment and plea of not guilty. All these point to the fact that even though the information on file was the one sent up by the justice, yet it was considered and treated as though it had been lodged or filed in the clerk's office by the prosecuting attorney as his official information in the case after the preliminary hearing before the justice. It is the contention of the State that the defendant was tried upon an information of the prosecuting attorney filed in the office of the clerk, and it matters not whether the prosecutor filed a separate information from the one filed before the justice. (3) The record does not affirmatively show that defendant was denied allocution. It is merely silent as to that. No motion for new trial was filed, hence nothing to show any action of the court indicating a denial of allocution. In such case the presumption should be indulged that the trial court discharged its legal duty in that regard. State v. Dalton, 289 S.W. 570; State v. McNeal, 237 S.W. 741. (4) The information charged E. F. Madden as the offender. The judgment is against E. F. Madden and the judgment entry sets out the jury's verdict finding E. F. Madden guilty. Page 7 of the record purports to be a copy of the verdict and shows "Keet" Madden was found guilty. The judgment is against E. F. Madden, the name given in the information. The clerk's certificate does not certify that page 7 of the record is a true copy of the verdict returned, hence, it would seem the verdict set out in the judgment entry should control and be taken on this appeal as the true verdict rendered. Verdicts should be given a reasonable intendment and not avoided unless it is evident they will work an injustice. State v. Grossman, 214 Mo. 233; State v. Jordan, 285 Mo. 72; State v. Gould, 261 Mo. 704; State v. Bishop, 231 Mo. 411.

White, J. Blair, P. J., concurs; Walker, J., absent.

OPINION

WHITE

The record shows that in the Circuit Court of Dade County, Monday, March 11, 1929, the defendant was arraigned on a charge of transporting intoxicating liquor, and pleaded not guilty; that he had no attorney, and the court appointed Edwin Frieze to defend him, and the same day judgment was rendered reciting that a verdict was returned against defendant finding him guilty as charged in count one of the information, leaving the punishment to the court; that the court sentenced the defendant to imprisonment in the penitentiary for a term of three years; that the defendant thereupon filed his application for appeal to the Supreme Court, which appeal was allowed; that the court then ordered the Sheriff of Dade County to destroy all evidence in the cause in his possession. Then follows a transcript of the papers filed in the justice court and of the proceeding there which shows that October 24, 1928, the city marshall filed a complaint against the defendant, and that on that day a warrant was issued and returned executed, bringing the defendant before the justice, and that on that day information was filed before the justice; that the defendant, failing to give recognizance, was committed to jail, October 25th; October 30, 1928, he waived a hearing, failed to give bond of $ 1500, and was committed to jail to await the March term of the circuit court.

I. There appears in the files a verdict as follows:

"We the jury find the defendant Keet Madden guilty as charged in count one of the information and assess his punishment at. We the jury leave the penalty to the Court.

"J. M. Brickey, Foreman."

It is claimed that this is the verdict actually rendered by the jury. There is no certificate that that is the actual verdict returned by the jury. We must presume that the judge did his duty and recited in his judgment the actual verdict returned by the jury. This verdict finding Keet Madden guilty may have been some random paper that got into the files. We are unable to tell by the loose way in which the transcript is put together and presented here that it has anything to do with this case.

II. A bill of exceptions appears to have been filed in due form and time in the circuit court, but no motion for new trial appears in the bill of exceptions and the record fails to show that any such motion was filed. The Attorney-General on this record asks this court to affirm the judgment without consideration of the merits of the case, as shown by the evidence and the errors assigned in the bill of exceptions.

The record shows that the defendant did not file such motion because he did not have time to file it. The judgment recites as follows:

"The jury agrees and returns into open court the following verdict, to-wit: 'We the jury find the defendant, E. F Madden guilty as charged in count one of the information and leave the punishment...