THE STATE v. FRED GOWDY, Appellant.
SUPREME COURT OF MISSOURI
March 19, 1925
307 Mo. 352
Division Two
We, therefore, hold that the appellant hospital is estopped by delay, neglect and laches of its trustees to say that the deed executed by Dr. Lutz was unauthorized and insufficient to convey the title of the hospital and that the trustees have thereby ratified his deed. The trial court decided the case correctly.
Complaint is made of the action of the trial court in permitting the agents of deceased persons to testify. As there was little in such testimony which could materially affect the conclusion we have reached, we think it is unnecessary to consider such assignment.
Complaint is also made because the trial court dismissed plaintiff‘s petition without adjudging and determining the rights and titles of the several parties. As the necessary effect of the judgment below was to find that all right and title of plaintiff in the property vested in defendants by virtue of the deed of May 8, 1914, and as defendants are not here complaining of the judgment in that respect, we are not called upon to consider such assignment.
The judgment is affirmed. All concur.
THE STATE v. FRED GOWDY, Appellant.
Division Two, March 19, 1925.
- GRAND JURY: Orally Directed to Return at Subsequent Term. Where the grand jurors who returned the indictment were summoned and acted under the oral order of the court on December 1st, it is unnecessary to decide whether the August grand jury, excused in September until the further order of the court, had a legal existence on December 1st after the commencement of the November term, although all of them so ordered and summoned were the same as the August grand jury except one, who had been excused.
———: Oral Order: Entered After Indictment Returned. On December 1st the judge of the circuit court orally directed the clerk to enter an order for convening a grand jury, and a special venire facias was issued, delivered to the sheriff, and served the same day, and the jurors thus summoned were sworn and set to work the same day, and on December 10th they returned an indictment against defendant, charging him with a felony. The clerk did not enter the oral order upon his record until December 14th, and as then entered it was in proper form, commanding the sheriff to summon twelve men to appear on December 1st, to serve as grand jurors. Held, that, even though it be conceded that an “order” as the word is used in the Constitution (Art. 2, sec. 28) and in the corresponding statute (Sec. 6614, R. S. 1919) means an order entered of record, the indictment was not invalid, although returned before the order was actually entered of record, since the circuit court can have any oral order, made at any time during the term, entered of record as of the date on which it was made, and the case stands as if the order had been entered on December 1st. - RECEIVING STOLEN GOODS: Instructions: Knowledge and Presumption. An instruction for the State telling the jury that the term “knowing” that the property was stolen means such knowledge and information in the possession of defendant at the time he received the stolen property as would cause him, under the circumstances, to believe and be satisfied that the property was stolen, is not in conflict with another for defendant telling them that they must find beyond a reasonable doubt that, at the time of buying and receiving the hogs, defendant had actual knowledge that they had been stolen, and that the mere naked fact of possession of the hogs by defendant raises no presumption that he knew they were stolen; and said instructions, taken together or separately, required the jury to find that defendant did actually know the hogs were stolen.
Citations to Headnotes: 1, Grand Juries, 28 C. J. 41; 2, Indictments and Informations, 31 C. J. 380; 3, Receiving Stolen Goods, 34 Cyc. 530.
Appeal from Andrew Circuit Court.—Hon. Guy B. Park, Judge.
AFFIRMED.
Shinabargar, Blagg & Ellison for appellant.
(1) The court erred in overruling the defendant‘s plea in abatement and motion to quash the indictment,
Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.
Appellant challenges the array of the grand jury in a plea in abatement filed herein on the alleged ground that the grand jury was not convened upon an order of a judge of a court having the power to try and determine felonies, made in vacation and filed with the clerk of the court or made in term time and spread upon the records of the court, as required by the Constitution and statute. The plea was properly overruled. Article 2, sec. 28, Mo. Constitution;
RAILEY, C.—This is a criminal prosecution under
The testimony in behalf of the State tended to prove that defendant, J. F. Gowdy, a farmer living near Tarkio, in Atchison County, bought eleven or twelve hogs in the fall of 1921, from Lee Gowdy, a cousin of defendant, and paid him $105 therefor, on a basis of market price of so much per pound, but without weighing them; that two farmers, John P. Lynn and J. F. Prather, in the fall of 1921, and some time prior thereto, were operating in partnership a large farm, known as Ranch 9, in Atchison County aforesaid, near Tarkio, and owned together, including other kind of stock, something like 150 hogs, of various colors, and weighing approximately about 150 pounds each; that Mr. Mitchell was foreman of said
It appears from the testimony of J. W. Hanna, Roy Chastain and W. P. Capper, that they were present and heard defendant asked, at different times and places, if he did not know at the time he got the hogs from Lee Gowdy, Earl Fox and George Keever, that they were stolen, and his reply was, “I had a damn good idea they were.”
It appears from the evidence that defendant paid for the hogs, about ninety dollars in cash, and indorsed a check for twenty dollars, instead of paying with a check against the partnership funds of his firm, as was their custom and partnership agreement. Nor was his partner, Mr. Hanna, ever charged with any part of the purchase price of said hogs.
The testimony in behalf of defendant tended to show that his general reputation for honesty and fair dealing and as to his being a law-abiding citizen, up to the time of the above trouble, was good.
The defendant, a young man thirty years of age, testified, in substance, that he was spending Saturday night
The defendant, during the progress of the case in the trial court, filed a plea in abatement and a motion to quash the indictment, both of which were overruled.
The plea in abatement, motion to quash the indictment, the instructions and rulings of the court will be considered, as far as necessary, in the opinion.
I. It is contended by appellant, that the trial court erred in overruling his plea in abatement and motion to quash the indictment.
The evidence of appellant in support of said plea and motion to quash, indicates that at the August term, 1921, of the Atchison Circuit Court, before whom this cause was then pending, there was caused to be duly impaneled in said court, a grand jury; that after-wards on the last day of said August term, 1921, being the 6th day of September, 1921, the Atchison Circuit Court entered in said cause in reference to said grand jurors, the following order: “They are there-
Although, as above stated, the judge in open court, orally directed said clerk to enter the above-mentioned orders on the court records on December 1, 1921, the clerk did not do so on said date, and the court record remained silent as to said orders until about the 14th day of December, 1921, when the clerk discovered he had failed to enter said orders of record, and thereupon on or about said date, entered in the court record the following:
“It appearing to the court that the further services of a grand jury is needed at this term of court, it is ordered that the clerk of this court issue a venire to the sheriff of this county, commanding the sheriff to summons twelve good and lawful men, drawn from the body of Atchison County, to appear at the court house, in the city of Rockport, at nine o‘clock, Thursday, December 1, 1921, to serve as grand jurors.”
The indictment herein, was returned on December 10, 1921, a warrant was issued for the arrest of defendant
It is insisted by appellant that the grand jury selected at the August term had no legal existence as such, on the 1st day of December, 1921, after the commencement of the November term, 1921. We are cited to the case of State v. Brown, 195 Mo. App. 590-1-2, 194 S. W. 1069, in support of this contention.
It is unnecessary, in view of the record aforesaid, to consider this question, as the grand jurors who returned the above indictment were summoned and acted under the oral orders of the court aforesaid, calling for a special venire to appear on December 1, 1921, during the November term, 1921, of said court.
II. It is claimed by appellant, that the grand jury selected on the 1st day of December, 1921, during the November term of said court, had no legal existence and that all of its proceedings in respect to the above indictment are coram non judice and void. It is insisted that Section 28 of Article II of our present Constitution, as interpreted by
Appellant contends that the word “order” used in Section 28 of Article two means an order entered of record, and that all orders not thus entered are void. We are cited by appellant to an array of authorities in this State, which hold, in legal effect, that the acts and proceedings of the circuit court could only be shown by its record, under the circumstances detailed in said respective cases.
Giving to appellant the benefit of his contentions, in respect to above matter, can it be said, that the convening of the grand jury in this case was void? It is elementary law in this State that our circuit courts exercise common-law jurisdiction, and are vested by
“In speaking of the power of these courts over their judgments in Rottmann v. Schmucker, 94 Mo. loc. cit. 144, it is said: ‘That a court of general jurisdiction, proceeding according to the course of the common law, has unlimited power during the whole of the term over its judgments rendered at such term, is a rule of universal application. [Freeman on Judgments, sec. 90.] Until the end of the term its judgments are in the breast of the court, and may be modified, vacated, or set aside, as justice demands, becoming absolute only upon the adjournment of the court for that term, and no good reason is perceived why the same rule should not apply to those judgments of the probate court, whose verity is as unquestionable after they become absolute as those of the circuit court—citing Caldwell v. Lockridge, 9 Mo. 362; Price v. Johnson Co., 15 Mo. 433; State ex rel. v. Treasurer of Callaway Co., 43 Mo. 228; Bartling v. Jamison, 44 Mo. 141; McCabe v. Lewis, 76 Mo. 296.‘”
The above quotation is fully sustained by the other authorities just cited, as well as by numerous opinions of our courts of appeals.
In view of the foregoing, we are of the opinion, that the trial court committed no error in overruling appellant‘s plea in abatement and motion to quash the indictment.
III. Appellant charges that: “The court erred in giving instruction numbered 8, at the request of the State, over the objections and exceptions of the defendant, in that said instruction did not require the jury to find the defendant did actually know the hogs were stolen.”
Said Instruction 8 and the one numbered 11, given at the instance of defendant, read as follows:
“8. By the term ‘knowing’ that the property was stolen, as used in these instructions, means such knowledge and information, if any, in the possession of the de-
“11. The court instructs the jury that before you can find the defendant guilty, you must find from the evidence beyond reasonable doubt that at the time of buying and receiving the two Lynn & Prather hogs mentioned in the evidence, if you find he did so buy and receive them, he had actual knowledge that they had been stolen; and, in this connection, you are further instructed that the mere naked fact of the possession of said hogs by the defendant raises no presumption that the defendant knew said hogs had been stolen.”
These instructions are not in conflict with each other, and properly declared the law.
The case of State v. Ebbeler, 283 Mo. 1. c. 59, and following, cited by defendant, does not condemn the instruction complained of, nor is its correctness challenged by any of the other cases cited by appellant. The instruction in the Ebbeler case complained of was numbered 2, and read as follows:
“By the term ‘knowing’ that the property was stolen is not meant absolute personal and certain knowledge on the part of the defendant that the property mentioned in the indictment had been stolen, but such knowledge and information in his possession at the time he received the same, if you believe he did receive it, as would put a reasonably prudent man, exercising ordinary caution, on his guard and would cause such a man exercising such caution, and under circumstances which you believe defendant received the property, to believe and be satisfied that the property had been stolen.
“The mere naked fact of the possession of said property by the defendant raises no presumption that the defendant knew that said property had been stolen by another.”
IV. We have carefully read, and fully considered, the evidence, instructions and rulings of the court, as shown in the transcript and the respective briefs of counsel. We are of the opinion that there was substantial evidence offered at the trial to sustain the conviction; that the instructions given by the court fairly and properly presented the law of the case to the jury; that no adverse rulings were made of which defendant can legally complain, and that the appellant has had a fair and impartial trial before an unprejudiced jury. The judgment below is accordingly affirmed. Higbee, C., concurs.
PER CURIAM:—The foregoing opinion of RAILEY, C., is adopted as the opinion of the court. All of the judges concur, except Walker, J., absent.
RAILEY, C.