State v. Swearengin

• Decision Date: 23 May 1911
• Citation: 137 S.W. 880,234 Mo. 549
• Parties: STATE v. SWEARENGIN.
• Court: Missouri Supreme Court

137 S.W. 880

234 Mo. 549

STATE v. SWEARENGIN.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

1. INDICTMENT AND INFORMATION (§ 110)— SUFFICIENCY—LANGUAGE OF STATUTE—LARCENY.

An information charging larceny of a hog in the language of Rev. St. 1909, § 4535, is sufficient.

2. INDICTMENT AND INFORMATION (§ 52)— VERIFICATION OF INFORMATION — SUFFICIENCY.

An information verified by the prosecuting attorney upon information and belief as prescribed by Rev. St. 1909, §§ 5057-5059, is sufficiently verified.

3. CRIMINAL LAW (§ 823)—INSTRUCTIONS— SUFFICIENCY.

An instruction that accused was guilty of larceny as a principal, if a hog was stolen at the time and place charged, and if he was present aiding and assisting, was sufficiently specific, where another instruction fully covered the law and evidence, and where there was no evidence showing any other larceny.

4. CRIMINAL LAW (§ 1111)—APPEAL—RECORD.

Loose pages contained in a transcript on appeal, but not contained in the bill of exceptions, nor authenticated as copies of the original instructions, cannot be considered as the instructions given, where the bill of exceptions shows proper instructions on the point, and there is no attempt to show that the instructions in the bill of exceptions were not the ones given.

Appeal from Circuit Court, Douglas County; Jno. T. Moore, Judge.

G. E. Swearengin was convicted of larceny, and he appeals. Affirmed.

The defendant was convicted of hog stealing and sentenced to two years in the penitentiary in the circuit court of Douglas county at the September term, 1910, upon an information charging that he and two others, on a day mentioned, "one hog of the value of fifteen dollars, belonging to Frank Ellison, then and there being found unlawfully and feloniously did steal, take and carry away contrary to the form of the statute," etc. On the trial there was evidence that defendant and two other persons were ostensibly hog hunting on the dates specified in the information; that while so engaged they captured a Poland China sow belonging to one Frank Ellison, which they turned over to one of the parties for $5, paid to the other two. The hog was ultimately retaken from the purchaser by the owner. A severance was granted the three parties charged. One of them entered a plea of guilty and testified on the trial of defendant. His testimony was corroborated by other witnesses, and tended to prove that defendant participated in the stealing and received part of the money paid for the hog. Defendant introduced witnesses as to his good character, and testified on his own behalf. He denied that he took any part in the theft of the sow, or received any of the money. He also denied the statement to the effect that he had given back to the purchaser the $5 paid for the hog when he learned the purchaser was about to be arrested; and denied that he advised the purchaser to leave the country. He admitted, however, that he loaned $5 to the purchaser of the hog. The court gave seven instructions, to which defendant duly excepted. After the overruling of his motions for new trial and in arrest, defendant appealed to this court.

G. Purd Hays, for appellant. Elliott W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

BOND, C. (after stating the facts as above).

1. Defendant assigns error in the overruling of his motion to quash the information. There is no merit in this contention. The information is framed according to the approved precedents, and charges the offense in the language of the statute upon which it is based. Section 4535, R. S. 1909; Kelley's Crim. Law, § 642; Sherwood's Crim. Law, pp. 217, 221; State v. De Witt, 152 Mo., loc. cit. 84, 53 S. W. 429.

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