State v. Nicholas
| Decision Date | 07 July 1910 |
| Citation | 130 S.W. 96,149 Mo.App. 121 |
| Parties | STATE OF MISSOURI, Respondent, v. P. G. NICHOLAS et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment reversed and cause remanded.
Jere S Gossom for appellants.
(1) This information fails to lay the offense within the time limited by law, and on the trial the State failed to show facts which would bring the prosecution within the exception of the Statute of Limitations, and is, therefore bad, and is barred by the statute. State v. English, 2 Mo. 182; State v. Meyers, 68 Mo. 268. (2) The court erred in admitting incompetent, immaterial, irrelevant and illegal testimony. Art. 2, sec. 22, Const. of Mo.; State v Williford, 111 Mo.App. 668; Ex parte Bedard, 106 Mo 624; State v. Wagner, 78 Mo. 644. (3) The State did not show that the witnesses whose testimony it read to the jury from the bill of exceptions were dead. State v. McO'Blenis, 24 Mo. 402; State v. Moore, 156 Mo. 210. (4) The court erred in its instructions to the jury. R. S. 1899, sec. 2175; State v. Chandler, 132 Mo. 162; State v. Sekrit, 130 Mo. 401.
B. A. McKay for respondent.
This was a prosecution under section 2175, R. S. 1899, and the case has once been before the St. Louis Court of Appeals. [State v. Nicholas, 124 Mo.App. 330, 101 S.W. 618.] It was there held that defendants' motion to quash the information should have been sustained, and the judgment was accordingly reversed and the cause remanded with directions to the circuit court to set aside its order overruling defendants' motion to quash the information and to grant the prosecuting attorney leave to file an amended information if he should be so advised. On the 17th day of July, 1907, the following information was filed: (Caption omitted.)
The case came on for trial and at the close of all the evidence the defendants asked a peremptory instruction that under the information and the testimony offered in support thereof, the verdict should be for the defendants. The court refused to give this instruction and defendants were found guilty and appropriate punishment assessed. The refusal of the court to give such instruction is assigned as error. Defendants insist that the so-called amended information fails to lay the offense within the time limited by law, and that on the trial the State failed to show facts which would bring the prosecution within the exception of the Statute of Limitations and that the prosecution was therefore barred.
Section 2422, Revised Statutes 1899, provides: "When an indictment or prosecution, shall be quashed, set aside or reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense."
I. As we have said, the St. Louis Court of Appeals, on the former appeal, remanded the case with directions to the trial court to set aside its order overruling defendants' motion to quash the information and to grant the prosecuting attorney leave to file an amended information if he should be so advised. The information on which the defendants were tried in the case before us is entitled, "Second Amended Information for Misdemeanor," and presumably was filed under the permission given in the opinion of the appellate court. The trial court could take judicial notice of the filing of the former information. [State v. Daugherty, 106 Mo. 182, 17 S.W. 303.] We think, however, the better practice is to introduce the former information in evidence at the trial so that in case of an appeal the appellate court would be possessed of all the facts.
II. A further assignment is made that instruction numbered 3 given for the State is erroneous. This instruction omits the words "lewdly and lasciviously." The abiding and cohabiting together should be both lewdly and lasciviously or the crime charged in the information is not established. The words of the statute, section 2175, Revised Statutes 1899, are as follows: ". . . and every man and woman, one or both of whom are married, and not to each other, who shall lewdly and lasciviously abide and cohabit with each other. . . ." The instruction, therefore, was not responsive to the allegation of the information. We think this instruction was therefore erroneous for not containing the words "lewdly and lasciviously," they being a part of the statutory definition of the offense which was charged in the information.
III. It is further assigned as error that the court admitted improper evidence; that the State was permitted to read in evidence the testimony preserved in the bill of exceptions of a former trial of the case of three witnesses, Willa Harvell, Belle Rader and Mrs. Florence Talley, without first showing that the witnesses whose testimony was read were dead or beyond the jurisdiction of the court; that no proper diligence was used by the State, the proof on the contrary being that the witnesses were living.
The circumstances under which a deposition taken upon a preliminary examination before a committing magistrate in the presence of the accused, or in which evidence taken at a former trial of the defendant on the same indictment can be subsequently used by the State, received learned and exhaustive consideration in this State more than half a century ago by our Supreme Court. In the case...
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