State v. Rowe

• Citation: 142 Mo. 439,44 S.W. 266
• Parties: STATE v. ROWE.
• Decision Date: 01 February 1898
• Court: United States State Supreme Court of Missouri

44 S.W. 266

142 Mo. 439

STATE v. ROWE.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

CRIMINAL LAW — SUFFICIENCY OF VERDICT.

Where an indictment charged defendant with burglary in the second degree and larceny, a verdict merely finding him "guilty as charged" was void for uncertainty; since Rev. St. 1889, §§ 3528, 3529, provide different punishments for "burglary" and "burglary and larceny."

Appeal from criminal court, Greene county; C. B. McAfee, Judge.

William Rowe was convicted of a crime, and appeals. Reversed.

E. O. Gorman, for appellant. Edward C. Crow, Atty. Gen., and Sam. B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

At the July term, 1897, of the Greene county criminal court, defendant was convicted under an indictment theretofore preferred against him by the grand jury of said county, charging him with burglary in the second degree and larceny, and his punishment fixed at five years' imprisonment in the penitentiary. He then filed motions for a new trial, and in arrest, which being overruled, he saved his exceptions, and brings the case to this court by appeal. Defendant is not represented in this court. No bill of exceptions was filed, so that there is nothing for review other than the record proper. The indictment is free from objection, and in form often approved by this court. The verdict of the jury was a general one, simply stating: "We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at imprisonment in the state penitentiary for the period of five years." The verdict and judgment are part of the record in the cause. In Bateson v. Clark, 37 Mo. 31, it was said: "The record proper by law is the petition, summons, and all subsequent pleadings, including the verdict and judgment, and that the law has made it our duty to examine and revise; and, if any error is apparent on the face of these pleadings which constitute the record, we will reverse the cause, whether any exceptions were taken or not." Railway Co. v. Carlisle, 94 Mo. 166, 7 S. W. 102; Railway Co. v. Lewright, 113 Mo. 660, 21 S. W. 210; Lilly v. Menke (Mo. Sup.) 28 S. W. 643.

The defendant was charged with two separate and distinct offenses, to wit, burglary in the second degree (section 3524, Rev. St. 1889), and grand larceny (section 3535, Rev. St. 1889). For burglary in the second degree the punishment is fixed by statute at not less than three years' imprisonment in the penitentiary. Section 3528, Rev. St. 1889. By section 3529, Rev. St. 1889, it is provided that "if any person, in committing burglary, shall also commit a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, and, on conviction of such burglary and larceny, shall be punished by imprisonment in the penitentiary, in addition to the punishment hereinbefore prescribed for the burglary, not less than two nor exceeding five years." It will be observed that the punishment prescribed by statute for the two different offenses is entirely different. While for the burglary it cannot be less than three years'...