State v. McGee

• Decision Date: 10 May 1904
• Parties: THE STATE v. McGEE and McGRAW, Appellants
• Court: Missouri Supreme Court

80 S.W. 899

181 Mo. 312

THE STATE v. McGEE and McGRAW, Appellants

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Reversed and remanded.

Thomas B. Harvey for appellants; John A. Gernez of counsel.

(1) The information, in the absence either of verification or affidavit in support thereof, was insufficient, and the motion to quash should have been sustained. State v Jones, 168 Mo. 398; State v. Bonner, 178 Mo 424. (2) The verdicts are not responsive to the charge contained in the information, nor to the issue submitted by the instructions of the court. State v. Pierce, 136 Mo. 40; State v. Rowe, 142 Mo. 442; State v. Jones, supra; Webber v. State, 10 Mo. 8; Clark's Crim. Proc., 485; 1 Bish. New Crim. Law, sec. 1005; Whart. Crim. Pl. & Pr. (9 Ed.), sec. 756; State v. Whitaker, 89 N.C. 473; Gibbs v. State, 34 Tex. 134.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

An information, in the absence of either verification or an affidavit in its support, is insufficient, and a motion to quash for that reason should be sustained. The judgment must be reversed. State v. Bonner, 178 Mo. 424.

OPINION

GANTT, P. J.

This is a prosecution by information filed in the circuit court of the city of St. Louis by the circuit attorney of said city, and, omitting caption, is as follows:

"That John McGee, Edward McGraw, alias Butch, and John Scullin, alias Kid Taylor, alias Whiting, on the twenty-first day of January, one thousand nine hundred and three, at the city of St. Louis aforesaid, about the hour of 11:40 in the night thereof, at the city of St. Louis aforesaid, one pearl scarf pin set with eleven diamonds of the value of one hundred and ninety dollars ($ 190.00), all the goods, chattels and personal property of one Harlow B. Spencer, then and there feloniously did steal, take and carry away from the person of the said Harlow B. Spencer in the nighttime, with intent then and there to deprive the owner of the use thereof and to convert the same to their own use."

"Appellants, on March 25, 1903, moved to quash the above information because, among other reasons: 'The information is not verified, nor is it based upon any affidavit, as required by law.' The court overruled said motion, and the appellants duly saved their exceptions. And, thereupon, and on the aforesaid date, the appellants were arraigned, entered their plea of not guilty and were placed upon trial, which resulted in a conviction of each of them, as expressed in the following verdicts:

"'State of Missouri v. John McGee and Edward McGraw.

"'On indictment for larceny from a person in the nighttime.

"'We, the jury in the above entitled cause, find the defendant, John McGee, guilty of larceny from a person in the nighttime, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for five years.

"'L. B. Jackson,

"'Foreman.'

"'State of Missouri v. John McGee and Edward McGraw.

"'On indictment for larceny from a person in the nighttime.

"'We, the jury in the above entitled cause, find the defendant, Edward McGraw, guilty of larceny from a person in the nighttime, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for five years.

"'L. B. Jackson,

"'Foreman.'

"At the same term of court, and within four days after the filing of said verdicts, appellants filed their motion for a new trial, the third ground of which was that, 'the court erred in overruling the motion of defendants to quash the information.'"

And, thereafter, appellants in their motion in arrest of judgment renewed their objection to the sufficiency of the information because not verified as required by law, and in addition to this ground assigned the further point that the verdict would not sustain the judgment because it was not responsive to the charge in the information, which was larceny from the person of Harlow B. Spencer in the nighttime, "whereas the verdict found them guilty of larceny from a person in the nighttime."

I. The information not having been verified as the statute (Secs 2477 and 2478, R. S. 1899) requires, and this failure having been brought to the attention of the circuit court by a timely motion to quash, which was overruled and exception saved, and the point having been renewed in the motions for new...