State v. Moore

• Decision Date: 25 May 1925
• Docket Number: No. 15163.,15163.
• Citation: 272 S.W. 710
• Parties: STATE v. MOORE
• Court: Missouri Court of Appeals

272 S.W. 710

STATE v. MOORE

No. 15163.

Kansas City Court of Appeals. Missouri.

May 25, 1925.

Appeal from Circuit Court, Cole County; H. J. Westhues, Judge.

"Not to be officially published."

Earl Moore was convicted of theft, and he appeals. Reversed, and defendant discharged.

R. M. Embry, of California, Mo., for appellant.

S. C. Gill, Sp. Pros., of California, Mo., for the State.

ARNOLD, J.

The defendant, charged with theft of 6 hams of the total value of $24, was tried and convicted in the circuit court of Cole county, Mo., under an information filed in the circuit court of Moniteau county; the case having been taken to Cole county on change of venue. The jury assessed the punishment at a fine of $25, and, from the judgment rendered thereon, defendant has appealed.

On the threshold of our consideration of this appeal, we are asked by respondent to dismiss the appeal for failure of appellant to comply with that part of our rule 16 relating to statement. It is charged that appellant's brief fails to set forth a clear and concise statement of facts. An examination of appellant's brief shows that these charges are well founded. However, under the provisions of section 4106, R. S. 1919, no such statement is required. This section provides that

"No assignment of error, or joinder in error, shall be necessary upon any appeal or writ of error, in a criminal case, issued or taken pursuant to the foregoing provisions of this article; but the court shall proceed upon the return thereof without delay, and render judgment upon the record before them."

See Hamuel v. State, 5 Mo. 260; State V. Athanas, 150 Mo. App. 588, 131 S. W. 373.

The appeal will not be dismissed, therefore, for the reasons urged.

We have before us for consideration appellant's statement and brief, in which certain errors of the trial court are set out and urged as grounds for reversal. We have also certified copies of the transcript and bill of exceptions. These we have examined, together with the briefs of the parties hereto.

Defendant predicates a charge of error, and seeks reversal upon the grounds (1) that the original information filed in Moniteau county, where the larceny is alleged to have been committed, did not state the ownership of the property stolen, and that it failed therefore to charge any offense; (2) that it was error to permit an amendment, by inserting in the information the name of the owner of the property stolen after change of venue and after the jury was sworn to try the case.

These points were properly raised in defendant's motion in arrest. The record shows that the original information, as filed in Moniteau county, failed to state the name of the owner of the property, and that, after the jury was sworn to try the case on its merits, over objections of defendant, the state was permitted to amend the information by inserting therein the name of such owner. The general rule relative to this situation is stated in 31 C. J. 732, as follows:

"As an element of the...