State v. Vaughn

• Decision Date: 23 November 1909
• Citation: 223 Mo. 149,122 S.W. 677
• Parties: STATE v. VAUGHN.
• Court: Missouri Supreme Court

122 S.W. 677

223 Mo. 149

STATE v. VAUGHN.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. CRIMINAL LAW (§ 1104) — RECORD ON APPEAL.

The transcript on appeal should keep the matters of the record proper distinct from the bill of exceptions.

2. CRIMINAL LAW (§ 1086) — ARRAIGNMENT — RECORD — NECESSITY.

The arraignment of accused and the entry of a plea must be shown by the record proper, or the conviction must be reversed.

3. CRIMINAL LAW (§§ 311, 366) — EVIDENCE — DECLARATIONS OF INSANE PERSON — ADMISSIBILITY.

One shown to have been insane, and committed to an insane hospital, presumptively continues to be insane while remaining a patient, and a statement made by her is presumptively incompetent, though a part of the res gestæ.

Appeal from Circuit Court, Callaway County; David H. Harris, Special Judge.

Elwood Vaughn was convicted of crime, and he appeals. Reversed and remanded.

I. W. Boulware and D. W. Herring, for appellant. E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

GANTT, P. J.

Defendant was convicted by a jury in the circuit court of Callaway county of an attempt to commit rape, and his punishment assessed at six years in the penitentiary. On motion his punishment was reduced to three years in the penitentiary, and he was sentenced accordingly. From that judgment he has appealed to this court.

The transcript is in a most unsatisfactory shape, and we must again admonish both counsel and the clerks of the circuit and criminal courts to see that the transcript shall show that the matters of record proper are kept distinct from the bill of exceptions, as was pointed out in Stark v. Zehnder, 204 Mo. 449, 102 S. W. 992. However, we have gone through the record, and have concluded that there is sufficient therein to indicate what is record proper and that which is in the bill of exceptions.

It appears that on January 9, 1908, an affidavit was made before J. B. Hyde, a justice of the peace, charging the defendant with the crime of burglary, and on January 29, 1908, there was a preliminary hearing of the said charge, which resulted in the justice holding the defendant to answer before the circuit court at its next regular term in May, 1908, to the said charge. The transcript was duly filed with the clerk of the circuit court, and at the said May term, 1908, the grand jury investigated the charge and reported "Not a true bill." Afterwards, on the 18th of September, 1908, the prosecuting attorney filed with the clerk of the circuit court an information, charging the defendant in two counts with the charge of burglary in feloniously breaking into State Hospital No. 1, located at Fulton, Mo. — in the first count with intent to make an assault upon one of the inmates therein, and in the second with the intent to take, steal, and carry away the goods and chattels belonging to the state in said hospital then and there kept. In due time a motion to quash was filed and overruled, and thereupon the defendant was arraigned and entered his plea of not guilty on December 7, 1908. Afterwards, on December 14, 1908, by leave of court, the prosecuting attorney filed a new information, which was also in two counts. On the 7th of January, 1909, and during the said December term, 1908, David H. Harris, Esq., was duly elected and qualified as special judge of the said circuit court, and on the 8th of January, 1909, defendant was put upon trial upon the said amended information, and the jury failed to agree and...