State v. Modlin

• Decision Date: 19 June 1906
• Citation: 197 Mo. 376,95 S.W. 345
• Parties: STATE v. MODLIN.
• Court: Missouri Supreme Court

95 S.W. 345

197 Mo. 376

STATE v. MODLIN.

Supreme Court of Missouri, Division No. 2.

June 19, 1906.

1. CRIMINAL LAW — APPEAL — REVIEW — INSTRUCTIONS.

On appeal the instructions cannot be reviewed, unless the motion for a new trial is preserved in the bill of exceptions.

2. SAME—EVIDENCE.

The evidence cannot be reviewed on appeal, unless the motion for a new trial is preserved in the bill of exceptions.

3. SAME.

Oral evidence, not embodied in the bill of exceptions, cannot be considered on appeal.

4. SAME—VERDICT.

If a verdict is not responsive to the issue or uncertain or indefinite, it is open for review on appeal or writ of error as part of the record proper.

5. CRIMINAL LAW—VERDICT—SUFFICIENCY.

Rev. St. 1899, § 2365, makes one an accessory after the fact who conceals any offender

after the commission of any felony, knowing that he has committed a felony, with the intent that he may escape or avoid arrest or punishment. On a prosecution under the statute for harboring, etc., one known to defendant to have committed larceny, the verdict was that defendant was found guilty of "harboring thieves." Held, that the verdict was insufficient to sustain a conviction, as jury should either have found defendant guilty as charged in the information, or found him guilty of having knowingly concealed the offender with the intent to aid him to escape arrest and punishment for the larceny.

Appeal from Circuit Court, McDonald County; F. C. Johnston, Judge.

Charles Modlin was convicted of a violation of Rev. St. 1899, § 2365, and he appeals. Reversed and remanded.

J. W. George and J. A. Sturges, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

The prosecuting attorney of McDonald county on July 1, 1905, filed an information in the office of the clerk of the circuit court of said county, duly verified, wherein and whereby he charged that "Floyd Eller and Joe Winslo, in May, 1905, at said county, did feloniously take, steal, and carry away one sorrel horse, the property of one Clay Robbins, and one saddle, the property of one H. H. Shover, of the value of $30, and that the defendant, Charles Modlin, well knowing the said Floyd Eller and Joe Winslo to have committed the aforesaid felonies in manner and form aforesaid, afterwards to wit, on the ____ day of May, 1905, at said county, did then and there unlawfully, willfully, and feloniously receive, conceal, harbor, and maintain said Eller and Winslo, with the intent and in order that they might escape and avoid arrest, trial, conviction and punishment; the said Charles Modlin then and there not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, to the said Eller and Winslo."

1. The information is grounded on section 2365, Rev. St. 1899, which provides: "Every person not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, and no other, shall be deemed an accessory after the fact, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in a county jail not less than three months." Owing to the utter disregard of all the technical requirements in the preparation of the bill of exceptions in this cause and in the certification of the record proper, the transcript in this cause was returned in order to have the same show the inception of this prosecution and the various steps taken in the cause, so that we might understand the history of the various steps taken in the circuit court. It has again been certified to us with little or no improvement. Neither the evidence nor the instructions of the court can be reviewed, because the motion for new trial is not preserved in the bill of exceptions; neither is there any direction to the clerk to copy said motion in the bill of exceptions. The oral evidence is not embodied in the bill of exceptions, and consequently cannot be considered by this court. The record...