State v. McBride
| Decision Date | 18 December 1928 |
| Docket Number | 29150 |
| Citation | 12 S.W.2d 46 |
| Parties | STATE v. McBRIDE |
| Court | Missouri Supreme Court |
Stratton Shartel, Atty. Gen., and A. B. Lovan, Asst. Atty Gen., for the State.
The defendant was charged, tried, and found guilty, in the circuit court of Pulaski county, of burglary with explosives, his punishment assessed by the verdict of the jury at imprisonment in the penitentiary for a period of 10 years, and he appealed.
An affidavit was filed before a justice of the peace of Pulaski county on August 17, 1927, charging that the defendant then and there unlawfully broke open the door of the Pulaski County Bank, entered and blew open the safe door and stole from the safe money and a Liberty bond for $ 500, serial No. 648822, and other personal property. A warrant for his arrest was issued. He was arrested, brought before the magistrate on September 1, 1927, and, after having seen and read the charge, entered a plea of not guilty and waived examination. He was thereupon committed and the justice filed a transcript of his proceedings with all papers in the case with the clerk of the circuit court. Thereupon an information was duly filed charging the defendant with the crime of burglary with explosives. On September 23, 1927, an amended information was filed, charging in substance that on or about December 12, 1926, at said county of Pulaski, James McBride, alias J. B. Wilson, alias C. E. Branson, alias Everett Clark, did then and there in the nighttime burglariously and feloniously break and enter into the Pulaski County Bank building, the property of the Pulaski County Bank, a corporation, etc., in the city of Richland, by forcibly opening the rear door of said building, with intent to steal, take, and carry away certain personal property kept and deposited therein, to wit, lawful money of the United States, bonds issued by the United States, and other personal property therein, and did then and there, after having burglariously broken into said building, use a certain high explosive, to wit, nitroglycerine, dynamite and other high explosives to the prosecuting attorney unknown, to break into and demolish a certain vault door and lock thereon and safety deposit boxes in said vault, the property of said bank, and by the use of said explosives did break and demolish said steel vault door and safety boxes therein, and did burglariously and feloniously steal, take, and carry away $ 282 in lawful money, the property of said Pulaski County Bank, and 2 government bonds issued by the United States of the value of $ 500 each, the property of A. P. Young, then and there being in said steel vault and building, against the peace and dignity of the state.
The Pulaski County Bank owned and occupied a 2-story brick building on a corner lot in Richland. The bank safe was at a front window, and farther back was a steel vault in which safety deposit boxes, some money, and valuable papers were kept.
On December 12, 1926, at closing time, the cashier locked the safe, vault, and the doors of the bank building, and went home. About 3:30 the next morning the cashier was called to the bank and found the lights on but no one in the bank. The rear door of the building had been forced or pried open. There were fumes or odors in the building, a hole had been drilled in the vault door, the lock to the door of the vault had been blown off, and the door and broken pieces of lock showed powder smoke or burns where an explosive had been used which had broken off the lock on the inside, and the pieces were lying about. A number of safety deposit boxes kept in the vault were broken open and their contents scattered on the floor. One of these boxes belonged to A. P. Young. He had some registered bonds which were left lying on the floor. He had two coupon 41/2 per cent. bonds, third issue, issued by the United States, each for $ 500, due in 1928, one numbered 648822, the other 733867, which were missing from his box in the vault. Silver coins of the value of $ 282 had been stolen from the vault. Two witnesses living in Richland, who had been hunting that night, returned about 3:30 a.m. The lights were on in the bank building, and, when about 250 yards from the bank, they saw a man standing under the street light at the bank corner, saw him walk to the rear of the building, and then return to the front. He looked about for a while, returned to the rear door and entered the building, looked out of the front window, and knelt down by the safe. The hunters ran to give an alarm and to call the cashier. They heard no explosion. They testified the man they saw at the building resembled the defendant, was about 6 feet tall, slim, of light complexion, and that his ears hung out. A witness saw a man and a woman sitting in an automobile in front of the bank building on the afternoon preceding the robbery. The man resembled the defendant. Defendant was arrested in St. Louis on August 27, 1927, and his wife's photograph was found in the rooms occupied by him and his wife. The woman in the car resembled the picture. The photograph was identified as Mrs. McBride's picture by one of the defendant's witnesses who knew both of them while they lived in East St. Louis.
Julius W. Schwaig, manager of the bond exchange department and bond teller of the Boatmen's National Bank of St. Louis, testified that he had had dealings with the defendant on several occasions; that on December, 22, 1926, he purchased from the defendant a $ 500 Third Liberty Loan bond, 41/2 per cent. numbered 648822, a coupon bond; that defendant said his name was C. E. Branson; that he saw defendant again on July 25, 1927, at which time he gave his name as J. G. Collins; that the defendant and his wife came into the Boatmen's Bank on August 15 and offered for sale a $ 300 bond and said his name was C. E. Branson. The defense was an alibi. The defendant did not testify. Appellant has not favored us with a brief.
1.Appellant demurred to the information for that it fails to charge a criminal offense under the laws of the state and fails to advise the defendant of the criminal offense he stands charged with. It does not appear that the defendant demurred to the amended information, the substance of which we have set out. It seems to follow the information in State v. Howard, 242 Mo. 432, 434, 147 S.W. 95, and clearly charges a violation of section 3303, R. S. 1919. The sufficiency of the amended information is not challenged in the motion for new trial.
2.In the motion for new trial it is said that the court erred in not sustaining the plea in abatement. This plea averred that the court should not take cognizance of the information because it was not filed in term time nor with the clerk in vacation, that the plea in abatement joined an issue of fact which was triable by a jury, and that the court erred in permitting the state to amend the information.
The clerk of the court testified, in substance, that on September 12, 1927, the sheriff brought the transcript of the justice of the peace from the prosecuting attorney who was ill at the time, together with the information to him, the clerk, and that he put a wrapper on the transcript and information and indorsed the filing on the wrapper, but not on the information, and that the information and transcript had remained in the filing box in his office ever since they were so filed. The court at this point permitted the clerk to indorse on the information: 'Filed, September 12, 1927,' with his signature thereto.
The court saw the original information which was signed by the prosecuting attorney and verified by his oath, as required by the statute, section 3849, R. S. 1919. The clerk put a wrapper around the information and the transcript and put his filing mark on the wrapper, as we have seen. The prosecuting attorney, by leave, filed an amended information. The depositing of the information with the clerk was a sufficient filing of it within the meaning of the statute cited. State v. Jackson, 221 Mo. 478, 493, 120 S.W. 66.
'But even if it were not, the failure of the clerk to endorse upon it 'filed,' and the date thereof, was at most an irregularity which could have been amended at any time before or during the trial.' State v. Coleman, 186 Mo. 151, 166, 84 S.W. 978, 982.
The issue raised by the plea in abatement was for the court and not for a jury. State v. Williams, 152 Mo. 115, 120, 53 S.W. 424, 75 Am. St. Rep. 441. And it appearing that the original information had been filed, the court properly permitted the prosecuting attorney to file an amended information.
3.Thereafter, on September 23, 1927, counsel filed a motion to quash the information and discharge the defendant for the reason that he 'has not been afforded a prelim inary hearing in said cause as provided by section 3848, Laws of Missouri, 1925, p. 195,' which reads:
'No prosecuting or circuit attorney in this State shall file any information charging any person or persons with any felony, until such person or persons shall first have been accorded the right of a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed, * * * provided, a preliminary examination shall in no case be required where same is waived by the person charged with...
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