State v. Rector

• Decision Date: 03 July 1931
• Docket Number: No. 30952.,30952.
• Citation: 40 S.W.2d 639
• Parties: THE STATE v. GENE RECTOR, Appellant.
• Court: Missouri Supreme Court

40 S.W.2d 639

THE STATE v.GENE RECTOR, Appellant.

No. 30952.

Supreme Court of Missouri.

Division Two, July 3, 1931.

Appeal from Bates Circuit Court.— Hon. W.L.P. Burney, Judge.

REVERSED AND REMANDED.

C.W. Evans and D.C. Chastain for appellant.

(1) The amended information is insufficient.It does not bring the defendant within material words of the statute.State v. Barnes, 281 Mo. 514;State v. Cox, 318 Mo. 657;State v. Small, 313 Mo. 66;State v. Miller, 132 Mo. 297.(2)The section of the act under which the defendant was charged, and the instructions of the court thereon, are void because the title of the act descends to particulars and does not cover the subject of carrying weapons.Sec. 28, Art. 4, Mo. Constitution;State v. Rawlings, 232 Mo. 544;State v. Hurley, 258 Mo. 275;State v. McEniry, 269 Mo. 228;State ex rel. v. Hackman, 292 Mo. 27;Berry v. Milling Co., 284 Mo. 193;Southard v. Short, 8 S.W. (2d) 903.(3)The section of the act under which the defendant was indicted and the instructions are void because they deny the right to bear arms.Sec. 17, Art. 2, Mo. Constitution.There was a failure of proof in that the evidence showed the revolver found at the scene of the wreck was not a deadly weapon.State v. Casto, 119 Mo. App. 265;State v. Larkin, 24 Mo. App. 410;State v. Roberts, 39 Mo. App. 47.

Stratton Shartel,Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) The amended information is fatally defective in that it does not charge any crime known to the laws of the State of Missouri.The statute creates and defines a crime unknown to the common law.The offense being of statutory origin, we must look to the statute for the constitutive elements of the crime.One of the essential elements of the crime is that the intoxicating liquor must be conveyed or transported in violation of some or all provisions of the laws of this State.The amended information contains no allegation that the intoxicating liquor was being conveyed or transported in violation of any provision of the laws of this State.State v. Barnes, 281 Mo. 515.In charging a statutory offense, the language of the statute alone will suffice if it sets forth all of the constituent facts necessary to constitute the offense; if not, then in addition to the language of the statute, such constituent facts must be pleaded.State v. Perrigin, 258 Mo. 236;State v. McWilliams, 267 Mo. 437;State v. Blakemore, 226 Mo. 560.(2) The words "while in charge of, or a passenger thereon," are not material facts in the offense condemned by the statute.They do not constitute essential elements of the offense.A person in an automobile is either in charge of it or a passenger thereon.The word "passenger" as used in the statute possesses no legal and technical meaning but is to be construed in its ordinary and usual meaning, which is, a passer-through or passer-by.Webster's Dictionary;Sec. 7058, R.S. 1919.(3)Appellant attacks the constitutionality of Section 17 on the grounds of the title descending to particulars and does not cover the subject of carrying concealed weapons and that it is void because it denies the right to bear arms.It is unnecessary to notice this assignment of error inasmuch as the constitutional question, if any, was not properly preserved in the lower court for this court's review.The question was not raised until the motion for new trial was filed.Appellant had full opportunity to raise any constitutional questions he desired at the time of filing his motion to quash the information.He did not do so, consequently, the point is not before this court for review.State v. Caldwell, 245 S.W. 626;State v. Lock, 302 Mo. 400.

ELLISON, J.

The defendant was convicted by a jury in the Circuit Court of Bates County of carrying a revolver in an automobile in which intoxicating liquor was being transported, in violation of Section 17,Laws 1923, pages 236, 241, now Section 4517,Revised Statutes 1929, and his punishment assessed at imprisonment in the penitentiary for a term of three years.Following the overruling of his motion for a new trial, due allocation, judgment and sentence he brings the case to this court by appeal.

The State's evidence showed that about dark on the evening of February 11, 1928, the appellant was driving a Ford roadster, in which another negro, Charles Harper, a witness for the State, was riding, along HighwayNo. 52 at a point near Butler in Bates County.The automobile collided with a loaded coal wagon and tipped over.Both occupants fled, but the witness Harper, who was painfully injured, went to a nearby house to telephone a relative for help, and was presently brought back to the scene of the accident.The appellant disappeared, and it was only through the testimony of Harper and the finding of some tickets near the wrecked automobile with the appellant's name on them that he was connected with the offense.His defense was an alibi.A five-gallon jug of whiskey, some smaller quantities, some bottles, some coats, a cap and the revolver were found lying in the road under the overturned car.The revolver was just under the seat.The witness Harper testified he had no revolver, and that he had never seen the one found and offered in evidence until after the accident.

I.The first two assignments of error are directed to the proposition that the amended information on which the prosecution was based was fatally defective and charged no Sufficient offense known to the laws of this State because it Information. failed to aver: (1) that the defendant was either in charge of the automobile or a passenger thereon; (2) and that the revolver was a weapon which could or might be used to inflict bodily injury or death.These points were urged to the trial court in a motion to quash the information, but the motion was overruled.The learned Attorney-General joins issues on these assignments, but confesses error on the further ground that the information failed to charge the liquor was being transported in violation of any provision of the laws of this State.

The amended information was as follows: "W.W. Sunderwirth, Prosecuting Attorney within and for Bates County, Missouri, upon his oath of office and upon the affidavit of Howell Heck, informs the court that on or about the 11th day of February, 1928, in the County of Bates and State of Missouri, one Gene Rector did then and there unlawfully, wilfully and feloniously carry a revolver in an automobile in which intoxicating liquor was being transported; contrary to the statutes in such case made and provided and against the peace and dignity of the State of Missouri."

The statute, Section 4517,Revised Statutes 1929, reads as follows: "Any person, while in charge of, or a passenger thereon, who shall carry on his person, or in, on, or about, any wagon, buggy, automobile, boat, aeroplane or other conveyance or vehicle whatsoever, in, or upon which any intoxicating liquor, including wine or beer, is carried, conveyed or transported in violation of any provision of the laws of this state, any revolver, gun or other firearm, or explosive, any bowie knife, or other knife having a blade of more than two and one-half inches in length, any slingshot, brass knucks, billy, club or other dangerous weapon, article or thing, which could, or might, be used in inflicting bodily injury, or death upon another, shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the state penitentiary for a term of not less than two years.Provided, that this section shall not apply to any person or persons transporting intoxicating liquor for personal use and not for sale in violation of law.Provided, that this section shall not apply to any person or passenger who did not know that such vehicle or conveyance was being used for unlawful purposes."

The information is, to say the least, very informal.It will be seen at once that it fails to follow the statute in the particulars mentioned.The crime charged, or attempted to be charged, is unknown to the common law.It is created wholly by the statute and to the statutewe must look for the constituent elements thereof.

Section 22, Article II, of the Constitution provides that "in criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation."This has been held to require that "the information shall specifically bring the defendants within all the material words of the statute, for it is the inflexible rule in criminal pleading that, in all indictments or informations for felonies, nothing can be left to intendment or implication."[State v. Barnes, 281 Mo. 514, 220 S.W. 848.]See also such recent cases as State v. Small, 313 Mo. 66, 280 S.W. 1033, andState v. Cox, 318 Mo. 657, 300 S.W. 756.

Undoubtedly the requirement that the accused be in charge of or a passenger in or upon the automobile or other vehicle or conveyance is a constituent element of the crime.The State does not dispute this but says a person traveling in In Charge of a conveyance is bound to be either in charge or Passenger thereof or a passenger thereon; and hence an upon Conveyance. averment that the accused "carried a revolver in an automobile in which intoxicating liquor was being transported" as in the information under consideration, being substantially a charge that he was riding therein, is not fatally defective, but at most only imperfect.And it is contended that since the State's evidence showed the appellant was driving the automobile and was in charge thereof, and his defense was an alibi — that is to say, he made no point about his status or connection with the transportation, but simply denied he was there at all — the imperfection did not tend to prejudice his substantial rights upon the merits, and under Section 3563,Revised Statutes 1929, was insufficient to invalidate the information or affect the...