State v. Taylor
| Decision Date | 12 November 1951 |
| Docket Number | No. 42532,No. 2,42532,2 |
| Citation | 243 S.W.2d 301,362 Mo. 676 |
| Parties | STATE v. TAYLOR |
| Court | Missouri Supreme Court |
John P. Ryan, Kansas City, for appellant.
J. E. Taylor, Atty. Gen., Richard H. Voss, Asst. Atty. Gen., for the State.
The appellant was convicted by a jury in the circuit court of Jackson County on an information charging felonious assault upon his wife, Agnes Taylor, with a deadly weapon, a razor, with malice aforethought and intent to kill her, in violation of Sec. 559.180, R.S.1949, Sec. 4408, R.S.1939, 13 Mo.R.S.A. Sec. 4408. The punishment assessed by the jury was imprisonment in the State Penitentiary for a term of five years. He was not accorded a preliminary examination under Sec. 544.250, R.S.1949, 12 Mo.R.S.A. Sec. 3893, but waived it by failing to object and going to trial. Lambus v. Kaiser, 352 Mo. 122, 176 S.W.2d 494.
He appeals as a poor person without filing a brief, bringing up only a transcript of the record including his motion for new trial under Sec. 547.110, R.S.1949, Sec. 4146, R.S.1939, 13 Mo.R.S.A. Sec. 4146. In these circumstances, under Sec. 547.270, R.S.1949, 13 Mo.R.S.A. Sec. 4151, we must examine the record proper and consider the ten assignments in his motion for new trial bearing on matters complained of and preserved in the transcript. State v. Harris, 357 Mo. 1119, 1120, 212 S.W.2d 426, 427(1); State v. Marshall, 354 Mo. 312, 314(1), 189 S.W.2d 301, 302(1).
The first assignment in the motion assailed the information on the grounds that it was insufficient to charge the crime, and was vague, indefinite and uncertain. The information was in the usual form and we see no defect in it except that in the beginning it charged the appellant George Carlyle Taylor committed the assault upon one 'George Carlyle Taylor,' that is to say, upon himself. But then it continued, reciting the assault was committed by the said George Carlyle Taylor upon 'the said Agnes Taylor.'
Undoubtedly the information was defective, as the result of this clerical error. But we think it was not invalid and void in view of Sec. 545.030, R.S.1949, Sec. 3952, R.S.1939, 12 Mo.R.S.A. Sec. 3952, which provides: 'No indictment or information shall be deemed invalid * * *;
'(14) For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; * * *
'(18) For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'
It was held in Town of Cameron v. Hicks, 65 W.Va. 484, 64 S.E. 832, 833, that 'To vitiate a pleading for 'repugnancy,' the conflict must be irreconcilable'; and in Brown v. State, 96 Tex.Cr.R. 409, 254 S.W. 495, 257 S.W. 801, that 'An indictment is 'repugnant' when, in the same count, it contains allegations inconsistent with each other, both of which cannot be true and there is no means of ascertaining from the face of the indictment which is meant.' 37 Words and Phrases, p. 90.
In this case the information on its face does seemingly charge that the appellant George Carlyle Taylor committed the assault upon himself (a person of same name at least). But it goes on to say the appellant with a razor assaulted 'the said Agnes Taylor' and inflicted upon her the serious wounds described. The use of the word 'said' with its context clearly shows the recital in the information that appellant assaulted himself was inadvertent and that Agnes Taylor was the person assaulted and intended to be designated. And the evidence shows without dispute that such was the fact if she was assaulted at all.
The next assignment in the motion for new trial is that the information was insufficient because it was not signed or sworn to by the prosecuting attorney and an assistant prosecutor, or verified by the oath of some person competent to testify as a witness, as required by Sec. 545.240, R.S.1949, Sec. 3894, R.S.1939, 12 Mo.R.S.A. Sec. 3894. That statute merely requires the information to be signed and verified by the prosecuting attorney, and not additionally by an assistant prosecutor, though it does permit verification by a person competent to testify. In this instance the information laying the charge was sponsored by Charles A. Darby, Assistant Prosecuting Attorney. And the supporting affidavit recited it was executed by him. But he failed to sign either, though the jurat, signed by a deputy circuit clerk, recited he had made the affidavit.
It has repeatedly been held that deficiencies such as the foregoing in complying with the requirements of the statute may be waived, and that the unsigned and unverified information will be treated as valid if the accused does not attack it by a motion to quash. No attack of any kind was made on the information in this case except in the motion for new trial. Hence this assignment is unavailing. State v. Jordan, Mo.Div. 2, 102 S.W.2d 575, 576; State v. Johnson, 351 Mo. 785, 787(1), 174 S.W.2d 139, 140(1, 2); State v. Majors, Mo.Div. 2, 237 S.W. 486, 488(1).
Next the motion for new trial assails the information as vague, indefinite and uncertain 'in failing to state acts or omissions of the defendant.' This complaint is wholly without merit. Stripped of repetition, it charged that on May 24, 1949, in Jackson County the appellant feloniously, willfully, on purpose and of his malice aforethought committed an assault upon Agnes Taylor with a razor, a deadly weapon, and cut her therewith on the head and body, with the felonious, willful, purposeful and malicious intent to kill her.
The 2nd to 8th assignments in the motion complain that the evidence was insufficient to support the charge beyond a reasonable doubt; because (2) the testimony of the prosecuting witness was uncorroborated; (3) the evidence failed to show a motive on the part of the defendant to commit the assault; (4) it failed to show the crime was committed with malice aforethought; (5) it was completely overcome by evidence favorable to the defendant; (6) it thereby raised the necessary inference that the verdict was the result of bias, prejudice, passion and partiality; (7, 8) and the court erred in failing to give an instruction in the nature of a demurrer to the evidence at the close of the State's case and the whole case. We hold neither of these assignments can be upheld.
As briefly as possible we sketch the evidence. The prosecuting witness, appellant's wife, testified that she had left him over a year before the trial while they were living in Wichita, Kansas, because of his drunkenness, idleness and threats, and moved to Kansas City, and was living with her mother. He came to Kansas City and on one or more...
To continue reading
Request your trial
-
State v. Keeble, 51315
...to the fact that he has had no preliminary hearing, he waives that requirement. State v. Woodward, Mo., 130 S.W.2d 474; State v. Taylor, 362 Mo. 676, 243 S.W.2d 301; State v. Thomas, 353 Mo. 345, 182 S.W.2d 534; State v. Cooper, Mo., 344 S.W.2d 72, cert. denied 368 U.S. 855, 82 S.Ct. 91, 7 ......
-
State v. Smart
...a heat of passion and without malice. In such circumstances it was reversible error to fail to give an instruction on manslaughter. State v. Taylor, supra, 309 S.W.id 621; State v. Sterling, Mo.Sup., 72 S.W.2d 70, 72; State v. Buckner, supra, 72 S.W.2d 73, 75; State v. Edwards, Mo.Supp., 22......
-
State v. Lowe
...be without merit if the actual situation were as claimed by appellant. Section 545.030(14, 18) RSMo 1949, V.A.M.S.; State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, 302; State v. Stokes, 288 Mo. 539, 232 S.W. 106, 110; State v. Honig, 78 Mo. 249, 252(1); 42 C.J.S., Indictment and Information, ......
-
State v. Tettamble
...hearing was waived by appellant failing to object and going to trial. State v. Small, supra, 386 S.W.2d, l. c. 381; State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, 302. Under Criminal Rule 28.02, V.A.M.R. we have reviewed the information, verdict, judgment and sentence on the record before us......