250 Mo. 263 | Mo. | 1913
The information fails to allege whether the railroad company is a corporation or copartnership, and if a copartnership, fails to state the names of the co-partners.
Defendant perfected an appeal to this court, and assigns as error the above-mentioned omission.
In the case of State v. Jones, 168 Mo. 398, it was held that a similar omission rendered the information bad. In that case Judge Cantt, speaking for the court, said:
“It has always been necessary to allege and prove the ownership of the house charged to have been burglarized, and the ownership of chattels alleged to have been stolen. [2 East, P. C. 650.] Where ownership is laid in a corporation, the fact of the incorporation should be alleged, and this is not affected by the fact that proof of the existence of the corporation de facto will sustain the charge. As nothing is to be left to intendment, the defendant is entitled to know whether*270 the State intends to show ownership in a firm composed of individuals or in a corporation. In this case he raised the objection in his motion in arrest, but it has often been ruled that he may take advantage of the defect in the indictment in this court for the first time. [State v. Patterson, 159 Mo. 98; Wharton’s Crim. Law, secs. 1828 and 1833; 2 Russell on Crimes, p. 100; Wallace v. People, 63 Ill. 451; 1 Bishop’s Crim. Prac. (3 Ed.), sec. 682; State v. Mead, 27 Vt. 722; Cohen v. People, 5 Parker’s C. R. 330; 2 Archbald’s Crim. Pl., 359; White v. State, 24 Tex. App. 231; Thurmond v. State, 30 Tex. App. 539; McCowan v. State, 58 Ark. 17.] There are cases to the contrary in other States, but in the absence of a statute we are relegated to the common law, and we hold the information bad in substance in failing to allege the names of the co-partners, if the .Drysdale-Ulen Hardware Company was a firm, and if a corporation in not alleging it was a corporation.”
In the case of State v. Horned, 178 Mo. 59, the information charged that the defendant burglarized “the depot of the Mississippi River and Bonne Terre Railway,” and the case was reversed and remanded because the information failed to allege that said railway was a corporation. In that case Judge Pox says:
“It may be ever so notorious that the railway mentioned was a corporation, yet that would not supply the necessary allegation that it was a corporation in the information or indictment. The general reputation and notoriety that it was a corporation would be sufficient proof of the existence of the corporation by virtue of the provisions of section 2634, Revised Statutes 1899; but before that proof would be admissible there must be an appropriate allegation in the information upon which to base it.”
In the case of State v. Kelley, 206 Mo. 685. the information charged the defendant with the burglary of a car-of the St. Louis and San Francisco Railway Com
In the case of State v. Clark, 223 Mo. 48, the defendant was charged with the larceny of certain goods “of the Chicago, Burlington & Quincy Railway Company,” and the information was held to be “fatally defective in not charging whether the alleged owner of the property was a corporation or a copartnership, and if a copartnership, in not giving the individual members thereof.”
We cannot admit the contention of the Attorney-General that the above eases should be ‘overruled on the authority of State v. Shields, 89 Mo. 259, or by force of sections 5114, 5115, Revised Statutes 1909. It is true the Shields case holds the contrary of the more recent opinions above cited; but no reason or warrant is given for the holding in that case save the authority of the cases therein cited. One of such cases is that of Commonwealth v. Williams, 2 Cush. 582. In that case the defendant was charged with burglarizing “the city hall of the City of Charlestown,” Mass. The objection to the indictment was that it did not charge that the city of Charlestown owned the city hall; but the court held that the indictment was sufficient in that regard. It will be seen at a glance that that case is not in point here. A review of each of the other cases cited in the opinion in the Shields case discloses the fact that none of them supports the holding therein.
Section 5114, Revised Statutes 1909, has reference to variance between the charge and proof, and in no manner undertakes to remedy or cure defects that may be found in the indictment or information. Section 5115, however, enumerates various defects which when found in the indictment or information will not render the same invalid, or cause the “trial, judgment or
It will he noticed from the authorities cited above that the common law required that the indictment charge the ownership of the building burglarized or the property stolen. The allegation of ownership has always been considered as essential. As was said in State v. Clark, supra, l. c. 52: "Defendants in criminal cases are entitled to he informed by the pleadings of the charges against them, and the question of the ownership of property in burglary and larceny is an essential element in the charge.” We are not aware of any rule or authority to justify the statement that a company name raises the presumption that the company is a corporation. It is well settled that a defendant charged with burglary or larceny is entitled to he informed as to who owns the property alleged to have been burglarized or stolen, and he is entitled to get this information from the information itself, and if the information designates the alleged owner by a company name, without stating that such company is a corporation or copartnership, and if a copartnership, it fails to give the individual members thereof, it thereby fails to fully inform the defendant of a very essential element of the offense of which he stands-
“It it not sufficient at common law to aver ownership in a partnership without giving the names of the partners.” [2 Wharton on Crim. Law (11 Ed.), sec. 1220.] There is conflict of common law authority a,s to whether it is necessary to aver that the company is a corporation. Mr. Wharton, in his work on Criminal Pleading and Practice [9 Ed.], in footnote to section 110, says: ‘ ‘ The question depends upon whether the court takes judicial notice of the (company) charter.” Joyce on Indictments, p. 403, section 361, states the general rule thus:
“Where the party against whom an offense has been committed is a corporation, an indictment therefor should, as a general rule, state the corporate name and that it is a corporation. So it has been decided in New York that it is necessary to allege in the indictment and also to prove at the trial, that the corporation alleged to have been injured by the offense of the defendant was an existing corporation. And in this connection it is said that ‘the indictment should aver facts which show that the company is a corporation. The use of a name which may import a corporation, or which, on the other hand, may be that of a voluntary association or a simple partnership, will not suffice.’ ”
We think the rule is correctly stated in the case of State v. Jones, supra, and cases following, and in conformity thereto the information is held invalid.
The judgment is reversed and the cause remanded.
PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.
