State v. Miller

• Decision Date: 16 May 1905
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

87 S.W. 484

188 Mo. 370

STATE v. MILLER.

Supreme Court of Missouri, Division No. 2.

May 16, 1905.

INFORMATION — SUFFICIENCY — ELECTION — CRIMINAL LAW—FUGITIVE FROM JUSTICE— STATUTE OF LIMITATION—HARMLESS ERROR.

1. Allegations of an information charging, conjunctively, that defendant, between certain dates extending over a period of more than three years, "was and has been a fugitive from justice, and during all the time fled from justice, and was not during the time an inhabitant or resident of the state," are not repugnant or inconsistent, and hence do not invalidate the information.

2. Nor did the allegations require the state to elect on which of the causes it would rely to prevent the running of the statute of limitations.

3. Where an information charged defendant with larceny of a horse, wagon, and harness, he was not prejudiced by the prosecuting attorney's refusal to prosecute on the charges as to the wagon and harness.

4. One who commits an offense and conceals himself to avoid arrest is a fugitive from justice, though he does not depart from the state.

5. On a prosecution for crime, where the offense was alleged to have been committed more than three years before the filing of the information, the failure of the court to specifically name, in its charge, the date of the filing of the information, was not error, the statement that the offense was alleged in the information to have been committed more than three years before the filing thereof being sufficient.

Appeal from Criminal Court, Jackson County; John W. Wofford, Judge.

Frank Miller, alias Summers, alias Munroe, was convicted of larceny, and he appeals. Affirmed.

This cause is in this court by appeal on the part of the defendant from a conviction of grand larceny from the Jackson county circuit court. This prosecution is based upon an information duly verified by the prosecuting attorney of Jackson county, and is as follows: "Now comes Roland Hughes, prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon the affidavit of Newton Vaughn herewith filed informs the court that Frank Miller, alias Frank Summers, alias Frank Munroe, whose true name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 23rd day of May, 1901, at the county of Jackson, state aforesaid, one wagon of the value of fifty dollars; one set of harness of the value of ten dollars; and one horse of the value of seventy-five dollars, all of the value of one hundred and thirty-five dollars, of the goods and chattels of one Newton Vaughn then and there being, did then and there unlawfully and feloniously take, steal and carry away. And the prosecuting attorney aforesaid, upon the affidavit aforesaid, further informs the court that said Frank Miller, alias Frank Summers, alias Frank Munroe, from and after said 23rd day of May, 1901, to the 25th day of May, 1904, was and has been a fugitive from justice and during all said time fled from justice, and was not during said time an inhabitant or resident of this state, against the peace and dignity of the state." To this information, the defendant interposed the following motion: "Comes the defendant, Frank Miller, and by leave of court withdraws his plea of not guilty, and now here moves the court to quash, or compel the state to elect for which cause this information is filed and defendant put upon trial, after the cause of action, if any such exists, is barred by the statute of limitation. The causes mentioned in the information are inconsistent and contradictory, and prejudicial to defendant, giving him no information to enable him to prepare for trial." The facts of this case as developed at the trial, on the part of the state, may be briefly stated as follows: On the 23d day of May, 1901, and for some time before, the defendant resided upon a leased place about a quarter of a mile northwest of the town of Dodson, in Jackson county, Mo. He was there known by the name of George Munroe, receiving his mail, rented the place, and had an account at the store in that name. He pretended to be following the business of repairing sewing machines, traveling about the country from place to place for that purpose. The prosecuting witness, Newton Vaughn, lived near Martin City, in the same county. It is not shown by the evidence what distance Martin City is from Dodson. The defendant had stayed overnight, without charge, at Vaughn's home at two different times about a month before the date of the offense charged in the information. On the morning of the 24th of May, 1901, Vaughn discovered that his horse, wagon, and harness had been taken during the night and driven away. There had been a shower of rain that night, and the wagon could easily be tracked. Many neighbors assisted Vaughn in the pursuit of his property, and they tracked it directly to the place where defendant lived, and there found it the same day. When the property was found by the owner and those with him, the defendant was not at home, but the woman, Mrs. Mason, with whom he had lived, was still there. The defendant was seen there the night before. A warrant was immediately issued for the arrest of the defendant, and placed in the hands of the constable, who made diligent search for the defendant, but was unable to find him. The case was placed in the hands of the police at Kansas City, and one of their number, who knew the defendant, was detailed to find him and make the arrest. He, too, was unable to get any trace of the defendant, although he made long and careful search, until about three years thereafter, at which time the arrest was made. At the time of the arrest and at the trial, the defendant gave his name as Frank J. Miller. Immediately after the finding of the stolen property at defendant's place of residence and defendant's disappearance, suit was instituted against him on the account heretofore mentioned, and his property attached. The defendant did not appear, judgment was rendered against him, and his property sold to pay the debt. When asked on the witness stand as to his sudden abandonment of his lease and property and his failure to return to Dodson, he answered that there was no use for him to go back, as he had "done up" all the sewing machine work in that locality. Mr. Kinney, a detective, who was a witness in this cause, had known the defendant under the different names of Summers, Frazer, and Munroe, and when arrested the defendant freely admitted his identity, and that he had stolen the Vaughn property, but said that he had reformed. Numerous witnesses were introduced, on the part of the defendant, showing that they had seen the defendant in different parts of the country since the alleged larceny was committed, and testimony showing that he was married in Kansas City, Mo., under the name of Frank J. Miller. Defendant testified in his own behalf, detailing practically his entire history, and where he had ever worked and for whom he had worked; denied any concealment of himself, and also denied the stealing of the property charged to have been stolen. It may be stated that the testimony upon the issues presented to the jury was conflicting. At the close of the testimony learned counsel for appellant interposed a demurrer to the evidence in the nature of an instruction directing the jury to acquit the defendant, which demurrer was by the court overruled. The court then proceeded to give instructions to the jury, and the cause was submitted, and they returned their verdict finding the defendant guilty of grand larceny as charged in the information, and assessing his punishment at two years in the State Penitentiary. Judgment was accordingly rendered upon said verdict, and from this judgment defendant prosecuted this appeal, and the record is now before us for review.

W....