The State v. Hedgpeth

• Decision Date: 22 December 1925
• Docket Number: 26202
• Parties: THE STATE v. HERMAN HEDGPETH, Appellant
• Court: Missouri Supreme Court

278 S.W. 740

311 Mo. 452

THE STATE v. HERMAN HEDGPETH, Appellant

No. 26202

Supreme Court of Missouri

December 22, 1925

Appeal from Criminal Court of Greene County; Hon. Orin Patterson, Judge.

Reversed and remanded.

Collins & Pierce for appellant.

(1) The State was required to charge in the information and, of course, to prove that the oil company was a corporation, and this proof could be made in just two ways, one by the certificate of incorporation, and the other as pointed out by statute, Sec. 4032, R. S. 1919. (2) There was no competent evidence that the Wilhoit Oil Company, whether a corporation or not, was even the owner of the filling station alleged to have been burglarized. The only property identified with any certainty as having been taken from the filling station was property not mentioned in the information, to-wit, a lead pencil. All the evidence concerning this lead pencil was incompetent and prejudicial and the court erred in admitting it. State v. Hyde, 234 Mo. 200; State v Banks, 167 S.W. 505; State v. Horton, 247 Mo 657. (3) The court erred in failing to instruct on circumstantial evidence. All the evidence in this case against this appellant as to burglary was wholly circumstantial, he was neither seen in or near this filling station, the nearest he was seen to it that night was three blocks away. Where the State relies upon circumstantial evidence to convict, then it is error for the court not to instruct on circumstantial evidence. State v Robison, 117 Mo. 663; State v. Moxley, 102 Mo. 374; State v. Donnelly, 130 Mo. 649. (4) The verdict in this case is not responsive to the issues and is indefinite and uncertain and this verdict should have been arrested upon appellant's motion in arrest. A verdict in a felony case must be certain, positive and free from all ambiguity. It must convey on its face a definite and precise meaning and must show just what the jury intended; an obscurity which renders it at all doubtful, will be fatal to it. State v. Rowe, 142 Mo. 439; State v. Standley, 232 Mo. 23; State v. Carragin, 210 Mo. 351.

Robert W. Otto, Attorney-General, and Harry L. Thomas, Special Assistant Attorney-General, for respondent.

(1) The information follows the statute and is in an approved form. R. S. 1919, sec. 3305; State v. Sprague, 149 Mo. 409; State v. Yandle, 166 Mo. 589; State v. Tracy, 243 S.W. 178. (2) Proof of corporation may be by reputation. State v. Stegner, 276 Mo. 427; State v. Decker, 217 Mo. 315; State v. Wise, 186 Mo. 42; State v. Knowles, 185 Mo. 168; State v. Moreaux, 254 Mo. 398; R. S. 1919, sec. 4032. Oral evidence as to the ownership of the building was competent, the title to the realty being only a collateral issue in the case. 10 R. C. L. 905; Knights v. State, 78 N.W. 508, 76 Am. St. 78; 22 C. J. 993; In re Mingo Drain., 267 Mo. 268; Erhart v. Wabash Railroad, 136 Mo.App. 621. (3) Evidence of thefts of property not charged in the information was admissible. The crimes were identical as to time and place and were inseparable with the crime charged. Further, the evidence went to prove identity. State v. Shobe, 268 S.W. 82; State v. Hyde, 234 Mo. 225; State v. Guye, 299 Mo. 348; State v. Lewis, 181 Mo. 261; State v. Salter, 256 S.W. 1068; State v. Peters, 242 S.W. 897; State v. Drummins, 274 Mo. 632; State v. Conway, 241 Mo. 279. (4) A verdict finding defendant guilty of both burglary and larceny and assessing his punishment at imprisonment for a term of five years is erroneous in that it does not fix the punishment for each offense separately. State v. McCune, 209 Mo. 399; State v. Logan, 209 Mo. 401; State v. Rowe, 142 Mo. 439; State v. McHenry, 207 S.W. 809.

OPINION

Walker, P. J.

The appellant was jointly charged with two others in the Criminal Court of Greene County in one count with burglary and larceny. A severance was granted and upon a trial he was convicted and sentenced to five years imprisonment in the penitentiary. From this judgment he appeals.

The statement of the facts is based upon the evidence introduced by the State, the appellant having offered no testimony.

The crime charged was committed July 16, 1924, at an oil station in the city of Springfield, operated by the Wilhoit Oil Company. At about 9:30 o'clock P. M., on the day stated, an employee of the oil company placed the day's receipts, consisting of money and checks, amounting to about one hundred dollars, in the safe, locked the same and the office door and left the station. On the inside casing of one of the windows he left an Ingersoll watch and a silver pencil. At daybreak or about four o'clock the next morning a call was received at the office of the police department for an officer to go to the oil station. Two officers, Hulse and Webb, responded. When they reached the station Frank Carey, who is one of the parties jointly charged with the appellant, came out of the station and was arrested. The appellant was arrested a short time after the officers reached the station as he came out from between two buildings about a block and a half from the station. As the officer ordered appellant to halt the latter threw a roll on the ground which was found to contain fifty-three dollars in currency and several checks made payable to the oil company. Appellant had on his person at the time of his arrest a loaded revolver, a knife, about nine dollars in money, an Ingersoll watch and a silver pencil; these two latter articles were identified by the employee as those left by him in the window of the oil station. When the officers turned the money out of appellant's pocket he said, "That is my own money."

An examination of the station disclosed that the burglars had effected an entrance thereto by prying open a window. The combination of the safe had been knocked off and the doors forced open.

I. It is contended that the information is invalid in that it charges two offenses in one count. There is no merit in this contention. The statute authorizes this procedure in charging the offenses in question in this language: "If any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment." [Sec. 3305, R. S. 1919; State v. Tracy, 294 Mo. 389 and cases.]

II. Failure to prove the corporate existence of the Wilhoit Oil Company, the premises of which were charged to have been burglarized, is assigned as error. Proof of the appellant's guilt of the crimes charged or either of them did not depend upon establishing the fact of the oil company's incorporation, but upon the question as to whether the appellant feloniously broke into the premises of another, and to establish the larceny, that he stole from such premises the property described in the charge. While the corporate existence of the oil company was alleged in the information it was a mere matter of description to enable the owner to be more readily identified. Whether, therefore, the owner of the premises be a corporation, a partnership or an individual is not material to the appellant's defense or in the establishment of his guilt.

The statute defining the manner in which corporate existence in a criminal case may be proved is in the following language:

"If on the trial or other proceeding in a criminal cause, the existence, constitution or powers of any banking company or corporation, shall become material, or be in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute book of the state, goverment or country by which such corporation was created." [Sec. 4032, R. S. 1919.]

Generally considered, the limitations of this section clearly indicate that evidence of corporate existence is not admissible in a criminal case, unless the same is material, and if not material it follows, as the section prescribes, that it cannot be drawn in question. In other words, the section was enacted to provide a ready means of proving corporate existence where such proof was an issue in the case. This statute does not attempt to change any rule of evidence further than to lessen the quantum of proof necessary to establish an incorporation. The proof therefore, of the legal character, natural or artificial, of a person whose premises are alleged to have been burglarized or property stolen, is governed by the same rule as to relevancy as any other fact and is admissible only when it will tend to establish the guilt or innocence of the accused or, as the statute redundantly puts, it, when it, is "material or may in any way be drawn in question." There is no pretense that this proof should have been made to establish the guilt of the appellant and nothing was attempted to be shown in what manner it would contribute to his defense. It is simply baldly contended that error was committed in not requiring the State to prove the corporate character of the oil company as laid in the information. The ownership of the premises alleged to have been burglarized, as well as that of the property stolen, was alleged in the information. This allegation was proved as laid. Whether such ownership was in a firm or...