The State v. Long
| Decision Date | 03 June 1919 |
| Citation | 213 S.W. 436,278 Mo. 379 |
| Parties | THE STATE v. CREDE LONG, Appellant |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court. -- Hon. David H. Harris, Judge.
Affirmed.
J. C Gillespy and E. C. Anderson for appellant.
Frank W. McAllister, Attorney-General, and Thomas J. Cole, Special Assistant Attorney-General, for respondent.
(1) The information follows the approved forms and, in its description of the hogs alleged to have been stolen, was more specific than was necessary. State v. Swearengin, 234 Mo. 549; State v. Dewitt, 152 Mo. 84; Kelley's Crim. Law, sec. 642. (2) But the information alleges, and the proof was, that the alleged stolen hogs were the property of the "University of Missouri." There was no proof that the University of Missouri is a corporation. The University, however, was incorporated by statute and the corporate name of the University is "The Curators of the University of Missouri." Sec 11097, R. S. 1909. (3) Courts take judicial notice of the statutes. State ex rel. v. Roach, 258 Mo. 541; State v. Case, 53 Mo. 246; Gibson v. Railroad, 225 Mo. 483; Davis v. McColl, 179 Mo.App. 204; State v. Pope, 110 Mo.App. 520. (4) The corporation "The Curators of the University of Missouri," is commonly known by the name "The University of Missouri." Laws 1915, p. 70, secs. 8 and 9; Laws 1913, p. 63, secs. 8 and 8a; Laws 1911, p. 50, sec. 9; Laws 1909, p. 54, sec. 8. (5) Proof of ownership in a corporation, in the name by which it is commonly called, is sufficient to sustain a conviction of larceny. Jackson v. State, 96 Ga. 165; Griffith v. State, 163 Ind. 555; 25 Cyc. 125. (6) It is sufficient to allege the name by which a corporation is generally known, though that is not its correct name, where it sufficiently appears what corporation is intended. State v. Rollo, 3 Penne. (Del.) 421; Rogers v. State, 90 Ga. 463; Jackson v. State, 76 Ga. 551; People v. Ferguson, 119 Mich. 373. (7) Instruction one in defining the offense of grand larceny as herein charged, required the jury to find that the hogs were the property of the "University of Missouri, a corporation," but did not require them to find that said university was a Missouri corporation, before they could find the defendant guilty. If an information state the name of the owner of the property it must be proved as laid. Cohen v. People, 5 Parker (N. Y.), Crim. Cases, 330; State v. Weeks, 30 Me. 182; Commonwealth v. Wade, 34 Mass. (17 Pick.) 395; Collier v. State, 4 Tex.App. 12; Rose v. State, 1 Texas App. 400. In other respects this instruction was complete and proper. Sec. 4535, R. S. 1909; State v. Moore, 101 Mo. 323, 331; Wein v. State, 14 Mo. 125, 128; Pattison on Instructions in Crim. Causes, p. 436. (8) Leaving out of consideration the fact that it was not proven that the "University of Missouri" was a corporation, the evidence was sufficient to sustain a conviction. State v. Underwood, 263 Mo. 685; State v. Concelia, 250 Mo. 425.
Defendant was convicted in the Circuit Court of Boone County for the larceny of certain hogs, the property, as the information charged, of "The University of Missouri, a corporation." Pursuant to verdict, he was sentenced to imprisonment in the State Penitentiary for a term of two years, and in the conventional way has appealed.
The hogs alleged to have been stolen were eight in number, were of the value of about $ 170, and were a part of a number of hogs kept by The University of Missouri at what is called in the record the "serum plant" for use in the process of producing hog cholera serum. Defendant, in June, 1918, sold and delivered these hogs for about $ 152 to one T. H. Armstrong, in whose possession they were subsequently found and positively identified as the property of "The University of Missouri." On being arrested defendant admitted that he had gotten the hogs from the serum plant, that he had kept them for a short time at the fair grounds, and had sold and delivered them to said Armstrong. No evidence of any sort was offered by defendant upon the trial; nor did he testify in his own behalf. But at the close of the evidence offered by the State, he contented himself with demurring thereto for its alleged insufficiency.
The instructions given by the court upon the trial followed the allegations of the information as to the ownership of the hogs alleged to have been stolen, and required the jury to find, as a condition precedent to conviction, that these hogs were the property of "The University of Missouri, a corporation." In all other respects the instructions given by the court nisi, both for the State and for the defendant, seem to have been in the usual and approved form.
In the course of the opinion it will become necessary to state other facts, but as these will, for clearness' sake, be more apposite if stated in connection with the facts up for judgment, we presently reserve a statement of them.
Defendant is not represented by counsel in this court, but as our duty is under the statute (Sec. 5312, R. S. 1909) we have examined the record for error with the identical care enjoined in cases wherein counsel have appeared for defendant. So doing, the only points debatable and which seem to be deserving of attention are, (a) Was the information sufficient? (b) Was there sufficient technical proof of guilt? and (c) Was there error in instruction one given by the court, sua sponte, for the State?
In the last analysis, each of these questions is identical; for each turns at last upon the question whether we may take judicial notice of two facts, (1) that the chief public educational institution of the State of Missouri is commonly known, both as to the institution itself and the controlling body corporate thereof, as "The University of Missouri," and (2) whether it is a corporation. If we may so notice the above two facts, touching which there was in the record no proof whatever, then it follows that the errors are not reversible, for it is plain that no harm accrued to defendant for the errors and omissions in the information, in the evidence and in instruction one. We are of the view that we may thus notice both of these vexing questions.
We are of course required so to safeguard the rights of defendant as that (a) he may be so far fully advised of the charge against him that he may properly and intelligently prepare his defense, and so be able fully to defend himself, and (b) that he may run no risk of a second prosecution and conviction for the identical offense confronting us, and of which he was convicted nisi. So much and no more is defendant entitled to under the Constitution. [Sections 22 and 23, Article 2, Constitution.] If, then, defendant was not misled upon his trial, if he was able -- the errors and omissions above referred to notwithstanding -- to properly and intelligently prepare his defense, if the trial jury was not misled, and if there is in such errors and omissions nothing to mislead the court should defendant upon another prosecution plead autrefois convict, we ought to affirm this case, for the points before us are bottomed upon the very baldest technicality.
The facts upon which defendant's above several contentions are founded arise upon the record thus: The information charged defendant with stealing certain hogs belonging to "The University of Missouri, a corporation;" that is to say, the ownership of the stolen property was laid in "The University of Missouri, a corporation." The proof followed this allegation, partially at least, and showed the ownership of the hogs in question to be in "The University of Missouri." Instruction one, given by the court, of its own motion, likewise followed the allegations of the information and required the jury to find that the hogs alleged to have been stolen by defendant were the property of "The University of Missouri, a corporation." It was not shown by the testimony that the University of Missouri is a corporation; nor was there proof adduced showing the true name and style of the corporate body which manages and controls the educational institution known as "The University of Missouri."
We judicially notice, however, that the corporation by which the University of Missouri is controlled is styled "The Curators of the University of Missouri." We notice this because such corporation is a public one, created by a public statute (Sec. 11097, R. S. 1909), of which, and of all such statutes, we are required to take judicial notice.
Initially the point arises in the case as one of a failure of proof, simply; because the allegation of the information is that the University of Missouri is a corporation, while the proof fails to show that it is such corporation. We escape this failure of the proof by taking judicial...
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