State v. Pilkinton

• Citation: 310 S.W.2d 304
• Decision Date: 07 February 1958
• Docket Number: No. 7625,7625
• Parties: STATE of Missouri, Respondent, v. Ni PILKINTON and Mrs. Catherine Pilkinton, Appellants.
• Court: Missouri Court of Appeals

Page 304

310 S.W.2d 304

STATE of Missouri, Respondent, v. Ni PILKINTON and Mrs. Catherine Pilkinton, Appellants.

No. 7625.

Springfield Court of Appeals, Missouri.

Feb. 7, 1958.

Motions for Rehearing or to Transfer Overruled March 3, 1958.

Ni Pilkinton, pro se.

R. D. Moore, West Plains, for respondent.

STONE, Presiding Judge.

Defendants, Ni and Mrs. Catherine (Ni) Pilkinton, appeal from the judgment entered upon the jury verdict finding them guilty of violation of the so-called compulsory school attendance law [Chapter 164] and assessing the punishment of each defendant at a fine of $10. Section 164.060. (All statutory references herein are to RSMo 1949, V.A.M.S.)

Following a practice neither helpful nor commendable [Mannon v. Frick, 365 Mo. 1203, 1205, 295 S.W.2d 158, 161], the state has filed no brief and rests on a seven-line 'motion to dismiss appeal' (unsupported by suggestions or authorities) because of the insufficiency of defendants'-appellants' brief under Rule 1.08. (All rule references are to Supreme Court Rules, 42 V.A.M.S.) Defendants, unlearned in the law and appearing pro se both in the trial court and on appeal, admittedly and understandably have found it difficult to prepare a brief satisfying the requirements of Rule 1.08, although we are impelled to observe sympathetically that their brief eloquently bespeaks a purposeful, unflagging, indefatigable industry which some of our brethren of the bar might well emulate in the preparation of briefs. Nevertheless, when defendants' brief is measured by the detailed and exacting, albeit plain and salutary, provisions of Rule 1.08, we necessarily must hold that nothing is presented for appellate review by the 'points' stated in defendants' brief, to-wit, that 'the verdict was contrary to the law and the evidence' [cf. State v. Garrett, Mo., 282 S.W.2d 441, 442(2)], that 'a reasonable cross-examination of the state's witnesses was not permitted' [cf. State v. Burns, Mo., 280 S.W.2d 119, 120-121], and that 'the court refused defendants' instructions and request for comment on the evidence.' Cf. State v. Francies, Mo., 295 S.W.2d 8, 15(19); State v. Tebbe, Mo.App., 249 S.W.2d 172, 174(3, 4). However, it by no means follows that defendants' appeal should be dismissed. For our courts, with their habitually scrupulous and traditionally tender regard for human life and liberty, reserve for imposition only in civil cases the drastic penalty of dismissal of the appeal provided by Rule 1.15; and, where a brief in a criminal case is so defective and insufficient that it is wholly disregarded, the appellate court still examines pursuant to Rule 28.02 what formerly was termed 'the record proper' [State v. Rutledge, Mo., 267 S.W.2d 625 (1); State v. King, 365 Mo. 48, 56, 275 S.W.2d 310, 315] and such assignments of error in the motion for new trial as are sufficiently specific to comply with Rule 27.20. State v. Mace, Mo., 295 S.W.2d 99, 101. See also State v. Johnson, Mo., 286 S.W.2d 787, 790. So, the state's motion to dismiss the instant appeal is overruled.

The information filed against defendants charges that 'on the ___ day of October, 1956, Mr. and Mr. N. I. Pilkinton * * * did then and there unlawfully, wrongfully and willfully having custody of * * * Lillie Taylor of the age of 7 years, and having said minor child under their * * * care, custody and control, and having been warned by notice as provided by law under * * * Section 164.010 to 165.090 * * *, fail, neglect and refuse to keep said child in regular daily attendance of public school.' The information contained no charge that defendants did not 'provide such child at home with such regular daily instruction during the usual hours as shall * * * be substantially equivalent at least to the instruction given the children of like age at said day school in the locality.' Section 164.010; now amended Laws of 1957, p. ----, S.B. No. 16.

The information is part of what formerly was termed the record proper [State v. Boyer, 342 Mo. 64, 69, 112 S.W.2d 575, 579; State v. Harris, 337 Mo. 1052, 1057, 87 S.W.2d 1026, 1028(5)]; and, in performance of the duty enjoined upon us by Rule 28.02 [see also Section 547.270], the sufficiency of the information to charge an offense is one of the questions into which we should inquire [compare State v. Rutledge, supra; State v. Garrett, supra, 282 S.W.2d loc. cit. 444--consult also State v. Couch, 344 Mo. 78, 79, 124 S.W.2d 1091; State v. Young, 345 Mo. 407, 409, 133 S.W.2d 404, 406(1)], regardless of whether such error has been assigned. State v. Winterbauer, 318 Mo. 693, 697, 300 S.W. 1071, 1073(4); State v. Wolfner, 318 Mo. 1068, 1074, 2 S.W.2d 589, 590(2). And, see State v. Eslinger, 361 Mo. 1062, 1065, 238 S.W.2d 424, 425(2, 3); State v. Horn, 336 Mo. 524, 525, 79 S.W.2d 1044, 1045(1); State v. Lettrell, Mo., 39 S.W.2d 556, 557(3, 4); State v. Barr, 326 Mo. 1095, 34 S.W.2d 477, 478(1), 479(3, 4).

Under the recent holding in State v. Cheney, Mo.App., 305 S.W.2d 892 (handed down in October, 1957, after trial of the instant case), it is clear that the information under review was insufficient to charge an offense under Section 164.010. It would be a work of super-arrogance for us to plow again the ground so freshly and so well broken in that case.

It follows that the judgment of conviction in the case at bar should be reversed and the cause remanded. It is so ordered.

McDOWELL and RUARK, JJ., concur.

On Motions for Rehearing or to Transfer

STONE, Presiding Judge.

Both the state and the defendants have filed pungent motions for rehearing or, in the alternative, to transfer this cause to the Supreme Court. The primary contention in the state's motion is that 'the provisions (of Section 164.010) relating to home instruction are not descriptive of the offense' and need not be negatived in an information, but that such provisions constitute an exception in the nature of 'defensive matter' to be pleaded and proved by defendants. Recognizing that this contention is contrary to the plain holding in State v. Cheney, Mo.App., 305 S.W.2d 892, the prosecuting attorney asserts that 'the learned court (Kansas City Court of Appeals) misconstrued the law in rendering that opinion' and that 'a fuller examination of the precedents, such as they are, greatly detracts from the persuasive force of the Cheney case'; and, on the authoirty of only one case [People v. Levisen, 404 Ill. 574, 90 N.E.2d 213, 14 A.L.R.2d 1364], it is suggested that, although similar statutory provisions 'are fairly common,' they 'are generally regarded in other states as requiring the defendant to raise the issue of instruction at home as a defense.' But as, from the time of Aristotle, it has been said that 'one swallow does not make a spring' (or, as Northbrooke's 'Treatise' put it in 1577, 'one swallowe prouveth not that summer is neare'), we doubt that a lone citation from a foreign jurisdiction, whose compulsory school attendance statute is not fairly comparable to ours in language and sentence structure, justifies any such easy and sweeping generalization.

Of course, we recognize that "where the exception or proviso is found in a separate and distinct clause or part of the statute, disconnected from that which describes the offense, no * * * negative averment is necessary in the indictment, and if the defendant is within the terms of the exception, he must show it in his defense." State v. Brown, 306 Mo. 532, 535, 267 S.W. 864, 865; State v. Zammar, Mo., 305 S.W.2d 441, 444. However, it is equally true and well-settled, as was appropriately pointed out in the Cheney case [305 S.W.2d loc. cit. 893(1)], that "exceptions must be pleaded in the indictment when they occur as parts of the statutory definition of the offense, in all cases where, if such exceptions be omitted, the offense cannot be accurately described." Among the numerous Missouri cases in which this latter principle has found application, see particularly Markley v. State, 10 Mo. 291 (discussed in the Cheney case, supra); State v. Sparrow, 52 Mo.App. 374, in which an indictment for unlawful hunting 'within the inclosure of one John Quinn, * * * without the consent of the said John Quinn, the owner of said inclosure' was held insufficient to charge an offense under a statute prohibiting hunting within the inclosure of another 'without the consent of the owner or person in charge of such inclosure'; and, State v. Raymond, 54 Mo.App. 425, in which an indictment for unlawfully causing a jack to serve a mare near a public highway and in a place "not * then and there so surrounded by artificial and barriers as to obstruct the view of persons traveling such road" was held insufficient to charge an offense under a statute prohibiting such service "near a public highway * * * unless the same is so surrounded by artificial or natural barriers as to obstruct the view of persons traveling such highway." (All emphasis herein is ours.) Consult also State v. De Groat, 259 Mo. 364, 168 S.W. 702, and State v. Meek, 70 Mo. 355 (prosecutions for criminal abortion); State v. Mikel, Mo., 278 S.W. 670, and State v. Ackley, Mo., 183 S.W. 291 (prosecutions for manslaughter by criminal abortion); State v. Renkard, 150 Mo.App. 570, 131 S.W. 168 (a prosecution for sale of cocaine by a druggist without the written prescription of a licensed physician or dentist); State v. Hamlett, 129 Mo.App. 70, 107 S.W. 1012 (a prosecution for unlawfully conducting a pharmacy and retailing medicines and poisons without being a registered pharmacist); State v. Stanley, 63 Mo.App. 654, and State v. Crenshaw, 41 Mo.App. 24 (prosecutions for malicious injury to a dwelling house); and State v. Ravenscraft, 62 Mo.App. 109 (a prosecution for larceny of a crop of growing grass). Compare City to Tarkio v. Loyd, 109 Mo.App. 171, 82 S.W. 1127, 1128(4), and City of St. Louis v. Stubley, Mo.App., 154 S.W.2d 407, 411(9).

The statutory duty with which parents are charged by Section...