The State v. Akers

• Citation: 213 S.W. 424,278 Mo. 368
• Parties: THE STATE v. DELBERT AKERS, Appellant
• Decision Date: 03 June 1919
• Court: Missouri Supreme Court

213 S.W. 424

278 Mo. 368

THE STATE v. DELBERT AKERS, Appellant

Supreme Court of Missouri, Second Division

June 3, 1919

Appeal from Dunklin Circuit Court. -- Hon. W. S. C. Walker, Judge.

Reversed and remanded.

Frank W. McAllister, Attorney-General, and S.E. Skelley, Assistant Attorney-General, for respondent.

(1) The verdict of the jury is general in form and sufficient. (2) The judgment of the court is in accordance with the verdict and substantially in form and language approved. Kelly's Crim. Law & Practice, sec. 450. (3) The record proper contains no record entry of the filing of the bill of exceptions, nor does it contain any other mention of said bill of exceptions except abstract of the court's order that defendant be given ninety days in which to file his bill of exceptions.

OPINION

WILLIAMS, P. J.

From a judgment of the Dunklin Circuit Court, sentencing him to two years' imprisonment for the crime of grand larceny defendant appeals.

The information was in two counts:

Count one in part charged "that on the 16th day of June, 1917 in the County of Dunklin and State of Missouri, one Delbert Akers, certain neat cattle, to-wit, one red cow and one black Jersey of the value of thirty-five dollars each, of the property and chattels of Lee Cook, then and there being found, then and there did feloniously steal, take and carry away," etc. Count one further charges one McMahon with being an accessory before the fact.

The second count charges in part "that on the 16th day of June, 1917, in the County of Dunklin and State of Missouri, one Delbert Akers certain neat cattle to-wit, one red cow and one black Jersey cow of the value of thirty-five dollars each, of the property and chattels of Lee Cook, did then and there feloniously steal, take and carry away," etc. Count two further charges said McMahon with being an accessory after the fact.

A severance was granted and defendant Akers was separately tried. The jury returned the following verdict:

"We the jury find the defendant Delbert Akers, guilty of Grand Larceny as charged in the first count of the information and assess his punishment at imprisonment in the Penitentiary for a term of two years. And we find him not guilty upon the second count of the information."

I. The transcript of the record proper in this case fails to show that the purported bill of exceptions was signed and filed in the trial court. That being true, the matters contained in the bill of exceptions are not before us for review. [State v. George, 221 Mo. 519, 522, 120 S.W. 35.]

II. It will be noted that each count of the information charges appellant with the identical crime. The verdict finds him guilty under the first count and not guilty under the second count.

The verdict is entirely inconsistent, because the jury could not have legally found what their verdict says they did find. Appellant was either guilty or not guilty of the crime, and could not have been both as found by the jury. We therefore think the verdict is too contradictory to support a judgment of conviction.

The somewhat more difficult question now arises, what shall be done with the appellant? Shall he be ordered discharged or...