Tucker v. Kaiser

• Decision Date: 03 January 1944
• Docket Number: No. 38721.,38721.
• Citation: 176 S.W.2d 622
• Parties: TUCKER v. KAISER, Warden.
• Court: Missouri Supreme Court

176 S.W.2d 622

TUCKER v. KAISER, Warden.

No. 38721.

Supreme Court of Missouri, en Banc.

January 3, 1944.

Original proceeding by Chauncey M. Tucker against Paul E. Kaiser, Warden, for a writ of habeas corpus.

Petitioner remanded to custody of warden.

E. C. Hamlin, of Springfield, for petitioner.

Roy McKittrick, of Jefferson City, E. Andrew Carr, of Springfield, and William C. Blair, of Jefferson City, for respondent.

ELLISON, Judge.

The petitioner pleaded guilty to embezzlement under Sec. 4478,¹ on December 7, 1942, and was sentenced to imprisonment in the penitentiary for a term of two years. He brings habeas corpus, his petition for our writ being taken by agreement as and for his reply to the respondent warden's return. The petition contains eight assignments that the information by which he was charged was fatally defective ; and one that his conviction was invalid because there had been no preliminary hearing under Secs. 3857, 3863, before he entered his plea. On this last point, the law is clear that by entering a plea of guilty he waived the preliminary hearing. State v. Woodward, Mo. Sup.Div. 2, 130 S.W.2d 474; State v. McKinley, 341 Mo. 1186, 1189, 111 S.W.2d 115, 117(1-3) ; State v. Pippey, 335 Mo. 121, 126(2), 71 S.W.2d 719, 721(5) ; and cases cited 9 West's Mo.Dig. "Criminal Law," [] 225.

Considering next the eight several attacks on the information, three of these are so vague as to constitutes mere conclusions. We shall not discuss them for that reason. They are numbers 1, 7, and 8, as follows :

1. That the information to which he plead guilty "totally fails to charge him with any offense against the law."

7. That it "is so indefinite and uncertain as to time, the exact nature of the accusation against him, that it does not apprise him of the exact nature of the accusation against him, and fails to charge any offense against him."

8. That he (petitioner) "is unlawfully deprived of his liberty, because there was not a formal or sufficient accusation filed against him to apprise him of the nature and cause of the accusation," for which reasons the circuit court had no jurisdiction and all its proceedings in the cause are a nullity and violated Art. II, Sec. 22, Const. of Mo., Mo.R.S.A.

We next take up the five more specific assignments. But first let us say that although the last (eighth) assignment above charges the information was so fatally defective as to deprive the circuit court of jurisdiction, yet when viewed on their merits, it appears the assignments were drawn on the theory that every point which may be raised on demurrer to an information, before trial, can also be utilized in attacking it by habeas corpus after judgment and sentence; and this notwithstanding the alleged errors were not called to the attention of the trial court at the time, and no appeal was taken. But this, of course, is not true; if it were, there would be no end to criminal litigation. In this very case we heard the petitioner on a writ of habeas last June, in which proceeding four of the same points were raised that are presented in assignments 2, 4, 6, and 7 here—though it is true the former proceeding was based on the original information.

Our statute of jeofails, Sec. 3952, provides that (parentheses ours) : "no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: * * * for any * * * defect or imperfection (of the nature mentioned therein) which does not tend to the prejudice of the substantial rights of the defendant upon the merits : Provided, that nothing herein shall be so construed as to render valid any indictment (or information) which does not fully inform the defendant of the offense of which he stands charged." In other words, after verdict it must lack some essential averment so that it would not bar another prosecution for the same offense. State v. Toombs, 324 Mo. 819, 833, 25 S.W.2d 101, 107(9) ; State v. Biven, Mo.Sup.Div. 2, 151 S.W.2d 1114, 1118(10).

The statute, Sec. 4478, provides : "If any * * * administrator * * * shall convert to his own use, in any manner whatever, * * * any moneys that may have come to him * * * by virtue of his * * * office or official position, or by virtue of any trust reposed in him * * * or any valuable security by him received for * * * disbursement, transfer or any other purpose, or which may be in his possession, or over which he may have the supervision, care or control by virtue of his office, agency or service * * * every such * * * administrator * * * shall, upon conviction, be punished"—as for larceny of the same property.

The amended information to which the plea was entered, was filed on December 3, 1942. It charged that the respondent Chauncey N. Tucker : "on or about the 15th day of October A. D., 1942, and on other dates within a period of three years prior to the said 15th day of October, 1942, at and in the County of Greene and State of Missouri, being then and there the duly appointed, qualified and acting administrator of the estate of Curtis A. Tucker, deceased, did then and there by virtue of being such administrator, as aforesaid, have, receive and take into his possession and under his care and control certain good and lawful money of the United States of America in the amount of $2016.54, and of the value of $2016.54, which said money was then and there the property of Chauncey N. Tucker as administrator of the estate of Curtis A. Tucker, deceased; the said money of the value of $2016.54, he, the said Chauncey N. Tucker, did then and there wilfully, unlawfully, fraudulently and feloniously embezzle and convert to his own personal use with the unlawful, felonious and fraudulent intent then and there to deprive the owner, Chauncey N. Tucker, administrator, of the use thereof, and the said Chauncey N. Tucker, the said $2016.54, in good and lawful money of the United States of America, in the manner and form aforesaid, feloniously did steal, take and carry away."

Condensed, the information alleges that on or about October 15, 1942, and on other dates within three years prior thereto, the petitioner was the duly appointed, qualified and acting administrator of the estate of Curtis A. Tucker, dec'd; that he then and there by virtue of being such administrator had, received and took into his possession, care and control $2,016.54 belonging to himself as such administrator ; and that he then and there feloniously embezzled said money and converted the same to his own personal use ; and in the manner and form aforesaid feloniously did steal, take and carry the same away.

The first specific assignment (No. 2) in the petition is that the information failed to charge he "made way with or secreted any money or property that came into his possession by virtue of his office as administrator, or by virtue of the trust reposed in him." All we can say in answer to that is that we think the contrary is true. The information says that by virtue of his being administrator he received the money and took it into his possession, care and control, the same being the property of himself as such administrator ; and that he then and there feloniously embezzled it and converted it to his own use.

The third assignment is that the information did not "properly allege" the ownership of the money purported to be embezzled. But it alleged the money he took over was the property of "Chauncey N. Tucker as administrator of the estate of Curtis A. Tucker, deceased"—that is, it belonged to him in his capacity as administrator. And that would...