The State v. Gowdy

• Decision Date: 19 March 1925
• Docket Number: 25316
• Parties: THE STATE v. FRED GOWDY, Appellant
• Court: Missouri Supreme Court

270 S.W. 310

307 Mo. 352

THE STATE v. FRED GOWDY, Appellant

No. 25316

Supreme Court of Missouri

March 19, 1925

Appeal from Andrew Circuit Court; Hon. Guy B. Park, Judge.

Affirmed.

Shinabargar Blagg & Ellison for appellant.

(1) The court erred in overruling the defendant's plea in abatement and motion to quash the indictment, over the objections and exceptions of the defendant. Section 28 Article 2, Constitution of Missouri, and particularly the provision thereof added by the amendment in 1900 reciting that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies, etc., means that the order for the grand jury must be filed or entered of record before the grand jury is convened and assumes to act. (a) The word "order" means an order entered of record. 15 C. J. sec. 382, p. 971; Medlin v. Platt County, 8 Mo. 235, 40 Am. Dec. 135; Milan v. Pemberton, 12 Mo. 598, 602; Dennison v County of St. Louis, 33 Mo. 171; Reppy v. Jefferson County, 47 Mo. 69; Maupin v. Franklin County, 67 Mo. 329; Nodaway County v. Williams, 199 S.W. 227; Davidson v. Davidson Real Est. & Inv. Co., 226 Mo. 1, 29; Decker v. Diemer, 229 Mo. 296, 322. (b) The word "order" is similarly defined in our statutes, and generally elsewhere. 6 Words & Phrases, p. 5020; 3 Words & Phrases (Second Series), p. 768; Sec. 1523, R. S. 1919; Sec. 2092, R. S. 1909; Sec. 768, R. S. 1899; Sec. 2208, R. S. 1889; Sec. 3674, R. S. 1879; G. S. 1865, p. 680, sec. 3; R. S. 1855, p. 1278, sec. 3; Secs. 4023-4, 4039, R. S. 1919; Secs. 5229-30, 5245, R. S. 1909; Secs. 2625-26, 2640, R. S. 1899; Secs. 4206-7, 4221, R. S. 1889; Secs. 1906-7, 1921, R. S. 1879. (c) The history of the legislation culminating in the constitutional amendment shows that such was the meaning of the provision. R. S. 1825, p. 466; R. S. 1835, p. 342, secs. 1, 3; R. S. 1845, p. 627, secs. 1, 3; Laws 1851, p. 226; R. S. 1855, p. 910, secs. 2, 4; G. S. 1865, p. 598, secs. 8, 9; Laws 1870, p. 53; Wagner Statutes 1870, p. 798, secs. 8, 9; Laws 1873, p. 46; Laws 1874, p. 97; Laws 1875, p. 78; Laws 1877, p. 279; R. S. 1879, secs. 2776, 2783-6; R. S. 1889, secs. 6059, 6066-71; Laws 1897, p. 141; R. S. 1899, secs. 3761, 3768-73; Laws 1899, p. 392; Laws 1901, p. 192; Laws 1907, p. 320; R. S. 1909, sec. 7266; R. S. 1919, sec. 6614; R. S. 1835, p. 480, sec. 13; R. S. 1845, p. 865, sec. 13; R. S. 1855, p. 1168, sec. 13; G. S. p. 837, sec. 13; Wag. Stat. 1870, p. 1083, sec. 13; R. S. 1879, sec. 1789; R. S. 1889, sec. 4084; R. S. 1899, sec. 2504; R. S. 1909, sec. 5084; R. S. 1919, sec. 3876; R. S. 1835, p. 479, secs. 2, 3; R. S. 1845, p. 863, secs. 2, 3; R. S. 1855, p. 1167, secs. 2, 3; G. S. 1865, p. 836, secs. 2, 3; Wagn. Stat. 1870, p. 1081, secs. 2, 3; R. S. 1879, secs. 1772, 1773; R. S. 1889, secs. 4067-8; R. S. 1899, secs. 2487-88; R. S. 1909, secs. 5067-8; R. S. 1919, secs. 3859-60; Sec. 12, Art. 2, Mo. Constitution; Laws 1899, p. 382; Samuels v. State, 3 Mo. 68, 71; 6 Am. & Eng. Ency. Law (2 Ed.) p. 931. (d) The decisions of this court tacitly concede that the order for the grand jury must be a record order entered before the jury is sworn. Stage v. Bleekley, 18 Mo. 428; State v. Welch, 33 Mo. 33; State v. Connell, 49 Mo. 286; State v. Drogmond, 55 Mo. 87; State v. Hart, 66 Mo. 213; State v. Pate, 67 Mo. 488; State v. Holcomb, 86 Mo. 376; State v. Griffin, 87 Mo. 612; State v. Turlington, 102 Mo. 648, 653; State v. Williamson, 106 Mo. 165, 169; State v. Hudspeth, 150 Mo. 21; State v. Reed, 162 Mo. 312; State v. Warner, 165 Mo. 399; State v. Taylor, 171 Mo. 465; State v. Berry, 179 Mo. 377; State v. Miller, 191 Mo. 587; State v. Crane, 202 Mo. 54; State v. Sartino, 216 Mo. 408; State v. Glasscock, 232 Mo. 278; State v. Connors, 233 Mo. 348. (2) The amendment of 1900 to Section 28, Article 2, Constitution of Missouri, above referred to, is mandatory and not directory. 6 R. C. L. 56, sec. 51; 6 Am. & Eng. Ency. Law (2 Ed.) p. 928; 12 C. J. 740, secs. 145, 146 and p. 731, sec. 109; State v. Kyle, 166 Mo. 302; State v. Skillman, 209 Mo. 408; State v. Campbell, 210 Mo. 226; State v. Warner, 220 Mo. 23; State ex rel. v. Gordon, 223 Mo. 34; State ex rel. v. Hitchcock, 241 Mo. 464; State ex rel. v. Gordon, 251 Mo. 303; State ex rel. Pub. Service Comm., 270 Mo. 429; State ex rel. v. Edwards, 241 S.W. 948; State v. Conner, 86 Tex. 133; 3 Words & Phrases (First Series) 207-8. (3) The omission of the order could not be cured by its subsequent entry, after the indictment had been returned. Burton v. Burton, 288 Mo. 531. (4) The omission of the order from the record was a jurisdictional error. State v. Warner, 165 Mo. 399, 415; 16 C. J. 176, sec. 230. (5) The giving of instruction numbered 11 at the request of the defendant did not cure the error in Instruction 8 given at the request of the State. 16 C. J. 1054. (6) The court erred in giving Instruction 8 at the request of the State, over the objections and exceptions of the defendant, in that said instruction did not require the jury to find the defendant did actually know the hogs were stolen. State v. Ebbeler, 283 Mo. 58; State v. Cavanagh, 225 S.W. 678; State v. Weisman, 225 S.W. 949; State v. Fleischmann, 228 S.W. 461; State v. Henderson, 231 S.W. 596.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

Appellant challenges the array of the grand jury in a plea in abatement filed herein on the alleged ground that the grand jury was not convened upon an order of a judge of a court having the power to try and determine felonies, made in vacation and filed with the clerk of the court or made in term time and spread upon the records of the court, as required by the Constitution and statute. The plea was properly overruled. Article 2, sec. 28, Mo. Constitution; Secs. 3859, 3860, R. S. 1919. (a) The grand jury for the August term, 1921, expired with the lapse of that term of court. State v. Brown, 195 Mo.App. l. c. 591. (b) The record entries relating to the judge's order for a grand jury were apparently made after the adjournment of the court, but it clearly appears that the grand jurors were summoned by the sheriff in compliance with a venire facias issued by the clerk under the seal of the court and that the body of men thus summoned were duly empaneled, sworn and charged, after being summoned and before attempting to discharge their duties as a grand jury. The competency of this organization cannot be challenged. State v. Bleekley, 18 Mo. 429; State v. Connell, 49 Mo. 287; State v. Welch, 33 Mo. 34; State v. Holcomb, 86 Mo. 376; State v. Crane, 202 Mo. 71. (c) The statutory mode of selecting a grand jury is directory only and not mandatory. Therefore, failure to summon a grand jury in strict compliance with the statute is not reversible error. State v. Knight, 61 Mo. 374; State v. Griffith, 87 Mo. 612; State v. Sartino, 216 Mo. 416. (2) The instructions given correctly declared all the law applicable to the facts in evidence and are sufficient. Sec. 3331, R. S. 1919; State v. Miller, 159 Mo. 118; State v. Glazebrook, 242 S.W. 932.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

This is a criminal prosecution under Section 3331, Revised Statutes 1919, by indictment, wherein defendant is charged with having bought and received, in Atchison County, Missouri, on the first day of November, 1921, two hogs, weighing 125 to 150 pounds each, belonging to and stolen from John P. Lynn and James F. Prather, a co-partnership doing business under the firm name and style of Lynn & Prather. The defendant was arraigned, entered a plea of not guilty and, on his application, the case was transferred to Andrew County, where the defendant was tried in the circuit court thereof, and a verdict of guilty returned by the jury, fixing his punishment at imprisonment in the penitentiary for two years. Motions for a new trial and in arrest of judgment were filed, overruled, defendant duly sentenced, and judgment entered in conformity to the verdict of the jury, from which said judgment defendant appealed to this court.

The testimony in behalf of the State tended to prove that defendant, J. F. Gowdy, a farmer living near Tarkio, in Atchison County, bought eleven or twelve hogs in the fall of 1921, from Lee Gowdy, a cousin of defendant, and paid him $ 105 therefor, on a basis of market price of so much per pound, but without weighing them; that two farmers, John P Lynn and J. F. Prather, in the fall of 1921, and some time prior thereto, were operating in partnership a large farm, known as Ranch 9, in Atchison County aforesaid, near Tarkio, and owned together, including other kind of stock, something like 150 hogs, of various colors, and weighing approximately about 150 pounds each; that Mr. Mitchell was foreman of said Ranch 9, had charge of the above hogs, attended to the feeding of same, and counted them every week; that some time prior to November 1, 1921, Mitchell missed six of said hogs, and after considerable search was unable to find them; that one George Keever testified he and Earl Fox went to Ranch 9 one night prior to November 1, 1921, between nine and ten o'clock, in a Buick six touring car, and while there caught and loaded two or three hogs from the Lynn & Prather herd and put them in a field on Ranch 8, on which defendant was then living and while in his charge; that they had no authority to take said hogs; that Earl Fox accompanied George Keever to Ranch 9, on the night aforesaid, and testified that he assisted in taking said hogs, and that the Buick car which they used belonged to D. A. Gowdy, father of Lee Gowdy; that previous arrangements had been made with defendant about taking hogs to his place, for which defendant was to pay the market price; that some time after the delivery...