State v. Taylor

• Decision Date: 21 February 1905
• Citation: 85 S.W. 564,186 Mo. 608
• Parties: STATE v. TAYLOR.
• Court: Missouri Supreme Court

85 S.W. 564

186 Mo. 608

STATE v. TAYLOR.

Supreme Court of Missouri, Division No. 2.

February 21, 1905.

STATUTES — CONFLICTING PROVISIONS — IMPLIED REPEAL — WOUNDING OR MAIMING DOMESTIC ANIMALS.

Rev. St. 1899, § 1987, providing that every person who shall willfully and maliciously kill, maim, or wound any horse belonging to another, shall be imprisoned in the penitentiary, being in irreconcilable conflict with section 1988, declaring that every person who shall willfully and maliciously or cruelly maim, wound, beat, or torture any horse belonging to himself or another shall be guilty of a misdemeanor, is repealed by the latter section.

Appeal from Circuit Court, Scotland County; E. R. McKee, Judge.

John Taylor was convicted of burglary, and appeals. Reversed.

On the 15th day of November, 1902, John M. Doran, prosecuting attorney of Scotland county, filed an information against John Taylor, charging him with burglary, in that he feloniously and burglariously broke into and entered a building of one D. A. Frazee, the same being used and occupied by the said Frazee as a stable, by breaking through the side of said stable, the same being a building in which divers goods, wares, merchandise, and valuable things were then and there kept and deposited, with intent, a certain horse then and there being in said stable, which said horse was the property of the said Frazee, feloniously, willfully and maliciously to cut, wound, and maim. The information is sworn to by D. A. Frazee, the prosecuting witness. At the special December term, 1902, of the circuit court of Scotland county, on the 15th day of said month, the defendant, by his attorneys, filed a motion to quash the information. This was overruled, and defendant thereupon entered a plea of not guilty. On the 17th day of February, 1903, defendant was placed upon trial, and by a jury found guilty as charged, and his punishment assessed at imprisonment in the penitentiary for a term of three years. Unsuccessful in his motions for a new trial and in arrest of judgment, the defendant brings the case to this court on appeal.

The information, which was duly verified, and upon which this judgment of conviction is based, is as follows: "John M. Doran, prosecuting attorney within and for Scotland county, state of Missouri, upon his oath of office informs the court that John Taylor, on the 11th day of November, 1902, at the county of Scotland and state of Missouri, did feloniously and burglariously break into and enter a building of one D. A. Frazee, there situate, the same being used and occupied by the said D. A. Frazee as a stable, by breaking through the side of said building, the same being a building in which divers goods, wares, merchandise, and valuable things were then and there kept and deposited, with intent a certain horse then and there being in said stable, which horse was the property of the said D. A. Frazee, feloniously, willfully, and maliciously to cut, wound, and maim, against the peace and dignity of the state." Defendant filed motion to quash the information, which was by the court overruled, and the trial proceeded.

For the purpose of determining the legal propositions involved in this case it is only necessary to state that the facts as shown by the state tended to prove the charge of the breaking into the building in which the horse was kept, and that there were in the building at the time of such breaking blankets, halter, and some feed. The testimony of the state further tended to show that the defendant wounded the front ankles of the horse of the prosecuting witness, Frazee. The defendant testified, and denied the breaking into the building, as well as the wounding of the horse. At the close of the evidence the court instructed the jury, and they returned a verdict of guilty, and, as before stated, defendant's punishment was fixed at three years in the penitentiary.

Defendant filed the following motion in arrest of judgment: "Now comes the defendant, and moves the court to arrest the judgment rendered in said cause for the following reasons: (1) Because the information does not state facts sufficient to constitute a crime against the defendant. (2) Because upon the whole record the judgment is erroneous and void. (3) Because the court erred in not sustaining a demurrer to the information filed by the defendant. (4) Because the court erred in not sustaining the defendant's motion for a new trial. (5) Because the verdict of the jury was not authorized by the record or the pleadings in the cause. (6) Because upon the whole record the judgment and verdict is without warrant or authority of law." The cause is now by this appeal presented to this court for consideration.

Smoot, Boyd & Smoot, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

FOX, J. (after stating the facts).

The vital, and by far the most important, proposition presented by this record is the one in which the validity or correctness of the information is challenged. This challenge is embraced and asserted in the first and sixth grounds of the motion in arrest of judgment, as follows: First. Because the information does not state facts sufficient to constitute a crime against the defendant. Sixth. Because upon the whole record the judgment and verdict is without warrant or authority of law. The information in this cause is predicated upon section 1886, Rev. St. 1899, which provides: "Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, or any booth or tent, boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable things kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree." It will be observed that the essential elements of the offense provided by that section are, first, there must be a breaking into a building of the character mentioned in the statute; second, such breaking must be with the intent to steal or commit a felony. The information charges that the defendant broke into and entered the building with the intent feloniously, willfully, and maliciously to cut, wound, and maim a certain horse, the property of D. A. Frazee. This confronts us with this proposition, is the willful and malicious wounding or maiming of a horse, under the laws of this state, a felony? If it is, the information properly charges burglary in the second degree, as defined by section 1886, supra; if it is not, and simply constitutes a misdemeanor, then there is no burglary charged as contemplated by that section. It will be noticed that the mere use of the term "feloniously" in charging the offense does not make it a felony. That term is simply a technical one, which is indispensable in informations and indictments in a charge of a felony; but in order to constitute an act as felony there must be a valid and existing law making the commission of such act that grade of offense. The section of the statute upon which the state must rest the correctness of the charge of the intent to commit a felony is 1987, Rev. St. 1899. It provides that: "Every person, who shall wilfully and maliciously kill, maim or wound any horse, mare, colt, mule, ass, neat or horned cattle of another, shall upon conviction be punished by imprisonment in the penitentiary not exceeding three years or by imprisonment in the county jail not less than six months or by a fine of not less than fifty dollars, or by both such fine and imprisonment." It must be conceded that if this section ended the legislation on the subject of maliciously and willfully maiming or wounding a horse, and stood alone as the expression of the will of the Legislature defining the offense, there could be no question or dispute that the willful and malicious maiming or wounding of a horse would constitute a felony; but the difficulty with which we are met in the solution of this proposition is that section 1987, supra, is not the only legislation upon this subject. Section 1988, Rev. St. 1899, provides that: "Every person who shall wilfully and maliciously or cruelly maim, wound, beat or tortue any horse, ox or other cattle, whether belonging to himself or another, shall be deemed guilty of a misdemeanor." It is clear under this section that the willful and malicious maiming or wounding of a horse of another is a misdemeanor. As applicable to the charge in the information in this cause, sections 1987 and 1988 are identical, and are irreconcilably in conflict. It will be noticed that in section 1988 it is apparent by its terms there are two subdivisions classifying the misdemeanor. It provides that every person who shall willfully and maliciously or cruelly maim, wound, etc., shall be deemed guilty of a misdemeanor. Under the first subdivision of this section (1988) it will be observed that the essential element of the offense which is declared a misdemeanor is the willful and malicious maiming or wounding of a horse. Under the second subdivision the only essential element of the offense is that...