State v. Mayer

• Decision Date: 18 February 1908
• Citation: 209 Mo. 391,107 S.W. 1085
• Parties: STATE v. MAYER.
• Court: Missouri Supreme Court

107 S.W. 1085

209 Mo. 391

STATE v. MAYER.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. RECEIVING STOLEN GOODS — INFORMATION — SUFFICIENCY — "STOLEN" — "PERMANENTLY DEPRIVE THE OWNER."

An information for receiving stolen goods, knowing the same to have been stolen, which alleges that accused received goods, knowing that the same had been taken and carried away from the owner with the intent on the part of the thief "to permanently deprive the owner" of the use thereof, etc., is fatally bad for failing to allege that accused knew that the property had been stolen; the word "stolen" meaning that a larceny has been committed, while the words "to permanently deprive the owner" of his property may not necessarily mean that a crime has been committed.

2. INFORMATION — SUSPENSION OF INFORMATION PENDING SUBSEQUENT INFORMATION.

Under Rev. St. 1899, § 2522 [Ann. St. 1906, p. 1503], providing that, if there be at any time pending against the same defendant two indictments for the same offense, the indictment first found shall be deemed to be suspended by the second indictment, one cannot be tried on an information so long as a second information charging the same offense is pending.

Appeal from St. Louis Circuit Court, C. Orrick Bishop, Judge.

Joseph Mayer was convicted of receiving stolen property, and he appeals. Reversed and remanded.

Thos. B. Harvey, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

On the 9th day of November, 1906, under an information filed by the assistant circuit attorney of the city of St. Louis, the defendant was convicted in the circuit court of said city of the crime of receiving stolen property, knowing the same to have been stolen, and his punishment assessed at imprisonment in the penitentiary for a term of two years. In due time thereafter defendant filed motions for a new trial and in arrest, which, having been overruled by the court, defendant appealed.

It appears from the record that on the 28th day of October, 1905, there was filed in the office of the clerk of the circuit court of said city an information which, omitting the formal parts, is as follows: "Richard M. Johnson, assistant circuit attorney in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the state of Missouri, upon his official oath, information makes as follows: That Joseph Mayer, on or about the 19th day of August, in the year of our Lord 1905, at the city of St. Louis aforesaid, three coils of No. 10 bare copper wire, of the weight of 330 pounds, and nine coils of No. 12 bare copper wire, of the weight of 675 pounds, all of the value of $180, of the goods, chattels, and personal property of the Western Electric Company, a corporation, then lately before feloniously, stolen, taken, and carried away from the said the Western Electric Company, a corporation as aforesaid, with the intent on the part of the thief to permanently deprive the owner, the Western Electric Company, a corporation as aforesaid, of the use thereof, feloniously and fraudulently did from the said thief buy, receive and have, the said Joseph Mayer, then and there well knowing the said goods, chattels, and personal property to have been taken and carried away from the said the Western Electric Company, a corporation as aforesaid, with the intent on the part of the thief, as aforesaid, to permanently deprive the owner, the said Western Electric Company, a corporation as aforesaid, of the use thereof, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." Thereafter, on March 24, 1906, a second information was filed against the defendant, charging identically the same offense, and based upon the same alleged criminal transaction, and having indorsed thereon the same witnesses, which said second information, omitting caption and verification, is as follows: "Arthur N. Sager, circuit attorney in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the state of Missouri, upon his official oath, information makes as follows: That Joseph Mayer on or about the 19th day of August in the year of our Lord 1905, at the city of...