The State v. Kelley

• Decision Date: 19 November 1907
• Parties: THE STATE v. DANIEL D. KELLEY et al., Plaintiffs in Error
• Court: Missouri Supreme Court

105 S.W. 606

206 Mo. 685

THE STATE v. DANIEL D. KELLEY et al., Plaintiffs in Error

Supreme Court of Missouri, Second Division

November 19, 1907

Error to Dent Circuit Court, -- Hon. L. B. Woodside, Judge.

Reversed and remanded.

J. D Gustin and Gratia E. Woodside for plaintiffs in error.

(1) The information is insufficient to support the verdict and judgment. The building charged to have been broken into and entered is alleged, inferentially, to have been the property of the St. Louis and San Francisco Railway Company, but it is not alleged in the information that that railway company was a corporation or that it was a co-partnership. This the defendants were entitled to know by the record, and the allegation that it was one or the other is indispensably necessary to the sufficiency of the information. If a corporation, the fact of incorporation must be set out; if a co-partnership, names of the partners must be stated. The same defect is apparent in the charge of larceny, the Wells Fargo Express Company, alleged as the owner of the property charged to have been stolen, not being described as a corporation or otherwise. State v. Jones, 168 Mo 402; State v. Horned, 178 Mo. 59; State v James, 194 Mo. 268. (2) Writ of error lies to correct errors apparent on the record; any defect that may be reached by timely motion in arrest of judgment may be reviewed and corrected on writ of error. State v. McGee, 8 Mo. 495; State v. Vaughn, 26 Mo. 29; State v. Meyers, 99 Mo. 107; State v. Levy, 119 Mo. 434. And this notwithstanding the plea of guilty to the charge made or attempted to be made in the court below. State v. Levy, 119 Mo. 434; State v. Rosenblatt, 185 Mo. 114. Nor is it a necessary prerequisite that motion in arrest should have been made prior to appeal or writ of error. State v. Vaughn, 26 Mo. 29. (3) The plaintiffs in error, defendants below, were jointly charged in the same information with burglary and larceny, but upon their plea of guilty the court failed to assess the punishment of each defendant separately for each offense. The information being insufficient to support either charge, the verdict and judgment can not stand. State v. Dooley, 64 Mo. 146.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley's Crim. Law, sec. 609; State v. James, 194 Mo. 269; State v. Watson, 141 Mo. 338. (2) Counsel for the State have filed a motion to quash this writ of error and dismiss this case, because said writ was not sued out till more than twelve months after the plea of guilty entered by the defendant. R. S. 1899, sec. 837. (3) The trial court failed to assess the punishment of each defendant separately for each offense. The record shows that each defendant entered a plea of guilty to the charge of burglary and larceny; that each was sentenced to ten years in the penitentiary. The trial court should have assessed the punishment separately for each offense, and it is respectfully suggested that if this court can consider this case at all, the case be remanded with directions to the trial court to assess the punishment for each offense separately. R. S. 1899, secs. 2648 and 2649.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

On the 23rd of February, 1901, the prosecuting attorney of Dent county filed the following information, duly verified, in the office of the clerk of the circuit court of said county:

"State of Missouri vs. Daniel D. Kelley, Nicholas Gardner, James Blackburn, James Wallace: -- Burglary and Larceny.

"Now comes A. E. McGlashan, prosecuting attorney within and for Dent county, in the State of Missouri, and informs the court that Daniel D. Kelley, Nicholas Gardner, James Blackburn and James Wallace, on the 23rd day of February, 1901, at and in Dent county, State of Missouri, did feloniously and burglariously break into and enter a certain building, to-wit, the depot of the St. Louis and San Francisco Railway Company, there situate, the same being a building in which divers goods, chattels and merchandise and valuable things were then and there kept and deposited, with the intent the goods, chattels, merchandise and valuable things in said depot then and there being then and there feloniously and burglariously to steal, take and carry away. And two revolvers, three watches, one pipe and other chattels of the value of thirty dollars, the personal property and in the lawful possession of the Wells Fargo Express Company then and there in the said depot being found, did then and there feloniously and burglariously steal, take and carry away, against the peace and dignity of the State.

"A. E. McGlashan,

Prosecuting Attorney."

The defendants were arrested and afterwards on the 26th of February, 1901, the following record was made in the said cause:

February 26, Special Term, 1901.

"State of Missouri vs. Daniel D. Kelley, Nicholas Gardner, James Blackburn and James Wallace. Burglary and Larceny.

"Now at this day the defendants are brought into court and having no counsel and no means to employ counsel, J. M. Stephens and J. F. Eaves are appointed by the court to defend said defendants.

"Now at this day comes the prosecuting attorney of Dent County, Missouri, and the said defendant Daniel D. Kelley, in proper person and by attorney, and the said defendant being arraigned upon an information filed by the prosecuting attorney of said county charging defendant with burglary and larceny in breaking into and entering into the depot building of the St. Louis and San Francisco Railroad Company at Salem in said county and State, and the said defendant for plea to said information says he is guilty in the manner and form as charged in the information, and his punishment is assessed at ten years imprisonment in the State penitentiary.

"Now at this day comes the prosecuting attorney of Dent county, Missouri, and the said Nicholas Gardner in proper person and by attorney, and the said defendant being arraigned upon an information filed by the prosecuting attorney of said county charging said defendant with burglary and larceny in breaking into and entering the depot building of the St. Louis and San Francisco Railroad Company at Salem, in said county and State, and said defendant for plea to said information, says he is guilty in manner and form as charged in the information, and his punishment is assessed at ten years imprisonment in the State penitentiary.

"Now at this day comes the prosecuting attorney of Dent county, Missouri, and said defendant James Blackburn in proper person and by attorney, and said defendant being arraigned upon an information filed by the prosecuting attorney of said county charging defendant with burglary and larceny in breaking into the depot building of the St. Louis and San Francisco Railroad Company at Salem, in said county and State, and the said defendant for plea to said information says he is guilty in manner and form as charged in the information, and his punishment is assessed at ten years imprisonment in the State penitentiary.

"Now at this day comes the prosecuting attorney of Dent county, Missouri, and the defendant James Wallace in proper person and by attorney and said defendant being arraigned upon an information filed by the prosecuting attorney of said county charging defendant with burglary and larceny in breaking into and entering the depot building of the St. Louis and San Francisco Railroad Company at Salem, in said county and State, and the said defendant for plea to said information says he is guilty in manner and form as charged in the information, and his punishment is assessed at ten years in the State penitentiary."

And thereafter each of the defendants filed his motion in said court to set aside his plea of guilty in said cause and give him a new trial therein, and the court made an order continuing the said motion. The record of the circuit court of Dent county is silent as to the further disposition of these causes until August 22, 1906, when the said several motions of the said defendants were taken up and by the court overruled, and thereupon the court entered the following sentence and judgment in each of the cases save and except as to the name of the defendant:

April Term, 1906, August 22, 1906.

"State of Missouri vs. James Blackburn. Burglary and Larceny of Depot Building.

"Now at this day comes the prosecuting attorney who prosecutes the pleas of the State, and also the defendant James Blackburn, in proper person and by attorney, and this cause coming on for hearing, it appears to the court that the said defendant on the 26th day of February, 1901, in this court entered his plea of guilty to burglary and larceny as charged in the information in this cause, and his punishment was assessed by the court at ten years...