State v. Miller

• Citation: 18 S.W.2d 492,322 Mo. 1199
• Parties: The State v. Phillip Miller, Appellant
• Decision Date: 04 June 1929
• Court: United States State Supreme Court of Missouri

18 S.W.2d 492

322 Mo. 1199

The State v. Phillip Miller, Appellant

Supreme Court of Missouri

June 4, 1929

Appeal from Clark Circuit Court; Hon. Walter A. Higbee Judge.

Affirmed.

T. L Montgomery and J. S. Tall for appellant.

(1) The court erred in submitting the case on the information charging a felonious stealing, to the jury, on an attempt to steal, not charged in the information. (2) The information under the evidence did not charge any crime and the court should have given defendant's Instruction 1 in the nature of a demurrer to the evidence. (3) The verdict is against the law because the court submitted the case to the jury on attempting to commit a felony, when no such charge was made or alleged in the information.

Stratton Shartel, Attorney-General, and Walter E. Sloat, Special Assistant Attorney-General, for respondent.

(1) The information properly charges grand larceny of motor vehicle parts, follows the wording of the statute, and is in an approved form. Sec. 29, Laws 1921, Ex Sess., p. 105; State v. Mathes, 281 S.W. 439; State v Caudle, 252 S.W. 702. (2) It was not necessary to charge an attempt of larceny in the information. When there are different degrees of an offense, the defendant may be found guilty of an attempt. Sec. 3692, R. S. 1919. The punishment for attempted larceny of an automobile, parts or equipment, is the same as though the crime had been committed. Laws 1921, Ex. Sess., p. 105. If the defendant is not convicted of the attempt when the evidence shows the crime was not completed, he cannot be tried later for the attempt. Sec. 3694, R. S. 1919.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

The defendant was charged, in the Circuit Court of Clark County, with stealing certain parts and equipments of an automobile, of the value of $ 50 or more. Upon trial, the jury returned the following verdict:

"We the jury find the defendant guilty of attempt grand larceny and assess his punishment at two years in the penitentiary with clemency."

He was sentenced to imprisonment in the penitentiary for two years, and appealed.

I. The transcript of the record proper shows the filing of an information by the prosecuting attorney, by which the defendant was charged with stealing certain parts and equipments of an automobile, of the value of $ 50 or more; that defendant waived formal arraignment and entered a plea of not guilty; that, upon trial to a jury, he was found guilty of "attempt grand larceny" and his punishment assessed at "two years in the penitentiary with clemency;" that he filed a motion for a new trial and said motion was overruled; that, upon allocution, he was sentenced to imprisonment in the penitentiary for two years, and judgment was entered accordingly; and that he filed "an affidavit for appeal" and was allowed an appeal to this court. Appended to the transcript of the record proper is the certificate of the Clerk of the Circuit Court of Clark County, in which the clerk certifies that it is a "full, true and complete transcript of the record and proceedings in the above-entitled cause." The proceedings of record so certified are properly preserved for our review. [State v. Keller, 304 Mo. l. c. 70, 263 S.W. l. c. 173.]

Attached to the transcript of the record proper is what purports to be a bill of exceptions and the same purports to have been signed by Walter A. Higbee, Judge of the 37th Judicial Circuit. The first and last pages of said purported bill of exceptions are stamped as follows: "Filed Dec. 5, 1928. Harry H. Lewis Clerk Circuit Court." And the transcript of the record proper, referring to the proceedings had on December 5, 1928, contains the following recital: "Now on this day comes the parties hereto and present to the court their Bill of Exceptions, which is this day seen, signed and sealed by W. A. Higbee, Judge of the Circuit Court." However, the transcript of the record proper fails to show that a bill of exceptions was ever filed in the trial court. Furthermore, said purported bill of exceptions has not appended to it, nor does it anywhere contain, a certificate of the Clerk of the Circuit Court of Clark County as to its genuineness, correctness or authenticity. The purported bill of exceptions does not authenticate itself, and, in the absence of a record entry showing that it was filed and a certificate of the clerk as to its correctness and authenticity, we are precluded from considering the matters of exception purporting to have been preserved thereby. [Sec. 4102, Laws 1925, p. 199, and Sec. 4103, R. S. 1919; State v. White, 315 Mo. 1276, 288 S.W. 18 (Court en Banc); State v. Kelsay, 18 S.W.2d 491.]

II. We now proceed to a consideration of the record proper, which, as above indicated, is properly before us. No attack is made on the information, and our...