The State v. Modlin
| Decision Date | 19 June 1906 |
| Citation | 95 S.W. 345,197 Mo. 376 |
| Parties | THE STATE v. MODLIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from McDonald Circuit Court. -- Hon. F. C. Johnston, Judge.
Reversed and remanded.
J. W George and J. A. Sturges for appellant.
(1) Defendant was charged with being an accessory after the fact and the jury found him guilty of harboring thieves. State v. DeWitt, 186 Mo. 61; 1 Bish. Crim. Proc. (3 Ed.) secs. 81, 82, 127, 128. (2) The information is insufficient in that it charges that before defendant could claim his exemptions from the statute creating the offense he is charged with violating he must be related as set out in the statute to both Eller and Winslo.
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, was sufficient. State v. Reed, 85 Mo. 194; R. S. 1899, sec. 2365; Kelley's Crim. Law, sec. 53. (2) The court can not review the evidence nor the instructions, because the motion for a new trial is not preserved in the bill of exceptions; neither is there any direction to the clerk to copy said motion. State v. Dunn, 73 Mo. 586; State v. Copeland, 146 Mo. 5; State v. Robinson, 79 Mo. 66; Reynolds v. Railroad, 146 Mo. 128.
The prosecuting attorney of McDonald county, on July 1, 1905, filed an information in the office of the clerk of the circuit court of said county, duly verified, wherein and whereby he charged that "Floyd Eller and Joe Winslo in May, 1905, at said county, did feloniously take, steal and carry away one sorrel horse, the property of one Clay Robbins, and one saddle, the property of one H. H. Shover, of the value of thirty dollars, and that the defendant Charles Modlin, well knowing the said Floyd Eller and Joe Winslo to have committed the aforesaid felonies in manner and form aforesaid, afterwards, to wit, on the day of May, 1905, at said county, did, then and there, unlawfully, willfully and feloniously receive, conceal, harbor and maintain said Eller and Winslo with the intent and in order that they might escape and avoid arrest, trial, conviction and punishment; the said Charles Modlin then and there not standing in the relation of husband, or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, to the said Eller and Winslo."
I. The information is grounded on section 2365, Revised Statutes 1899, which provides: "Every person not standing in the relation of husband or wife, parent or grand-parent, child or grand-child, brother or sister, by consanguinity or affinity, who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, and no other, shall be deemed an accessory after the fact, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in a county jail not less than three months."
Owing to the utter disregard of all the technical requirements in the preparation of the bill of exceptions in this cause, and in the certification of the record proper, the transcript in this cause was returned in order to have the same show the inception of this prosecution and the various steps taken in the cause, so that we might understand the history of the various steps taken in the circuit court. It has again been certified to us with little or no improvement. Neither the evidence nor the instructions of the court can be reviewed because the motion for new trial is not preserved in the bill of exceptions, neither is there any direction to the clerk to copy said motion in the bill of exceptions. The oral evidence is not embodied in the bill of exceptions and consequently cannot be considered by this court. The record proper only is before us for review. The verdict is a part of the record proper, and is in this form: "We the jury in the case of State v. Charles Modlin, for harboring thieves, find the defendant guilty, and assess his punishment at two years in the State penitentiary." The point is made that the verdict on its face show that it is insufficient to sustain the judgment and sentence of the circuit court on the information against the defendant. By reference to the information itself and the statute, already noted, upon which it is founded, it will be seen that the defendant was charged with being an accessory after the fact in feloniously receiving, concealing, harboring and maintaining Floyd Eller and Joe Winslo, after they had feloniously taken, stolen and carried away the horse and saddle mentioned in the information, with the knowledge that the said Eller and Winslo had committed the said larcenies.
In the consideration of the sufficiency of this verdict, it must be borne in mind that it is well-settled law in Missouri that if the verdict, which is a part of the record, is not responsive to the issue, or is uncertain or indefinite, it is open for review on appeal or...
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