124 S.W.2d 1089 | Mo. | 1939
Lead Opinion
Appellant was convicted in the Circuit Court of Cole County of the crime of grand larceny, sentenced to two years' imprisonment in the penitentiary and has appealed. He filed no bill of exceptions in the trial court, so we have before us for review only the record proper, as certified by the circuit clerk.
Appellant has filed in this court two transcripts of the record, each certified by the clerk of the circuit court to be a full, true and complete transcript of the record. One, which we may call the first, was certified by the clerk under date of May 24, 1938, and filed here on June 6, 1938. The second was certified by the clerk under date of May 28, 1938, and filed here September 27, 1938. The first transcript does not show allocution and sentence, while the second transcript does, and contains some other entries not shown by the first. There is also a difference in the wording of the information as copied in the two transcripts respectively, which will be noted hereinafter. No explanation appears in the record before us for the filing of a second transcript. [1] It was appellant's duty, under Section 3757, Revised Statutes 1929 (Mo. Stat. Ann., p. 3295), in order to perfect his appeal, to cause to be filed in this court a complete and properly certified transcript. [See State v. Ross,
[2] Omitting caption, signature and verification, the information, as copied in said second transcript, reads:
As copied in the first transcript the words "a copartnership" appear in the information immediately following "Eggers' Garage" making that part of the information read "of the goods and personal property of Eggers' Garage, a copartnership." In his brief here appellant says the words "a copartnership" were interlined in the information, by way of amendment and by leave of court, over his *77 objections, during the trial. There being no bill of exceptions in the record we cannot of course consider matters of exception that could only be preserved for review by such bill.
[3] Appellant contends that the information, both as originally filed and as amended, is fatally defective in that it does not sufficiently charge the ownership of the property alleged to have been stolen; in the original (if for convenience we may so designate it), because "Eggers' Garage" is not "identified" as a corporation, and in the information as claimed to have been amended because the names of the partners are not alleged. He cites State v. Kelley,
"Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the christian name or surname, or both christian name and surname, or other description whatsoever, or any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material *78 to the merits of the case and prejudicial to the defense of the defendant."
In the instant case we do not have before us the proceedings at the trial except as shown by the record proper but, indulging as we must the presumption of right rather than wrong action on the part of the trial court, it is apparent that said court did not find that the ommission from the information of an allegation that Eggers' Garage was a corporation, or if a copartnership an allegation of that fact and the names of the partners, was material to the merits of the case or prejudicial to the defense of the defendant; because had the court so found it would have been in duty bound not to permit a verdict of guilty to stand. It submitted the case to the jury, accepted the verdict and permitted it to stand. We must presume that the court did not make such finding.
We shall not take space to recapitulate the reasons set forth in the Carson case for the holding there made. Suffice it to say that, while that was a prosecution for selling mortgaged property without consent of the owner the reasoning, in our opinion, applies with equal force to the question we are considering and results that, on the record before us, the information herein must be held sufficient to support the judgment. The verdict and judgment are sufficient. No reversible error appearing from the record before us the judgment must be and it is affirmed.Westhues and Bohling, CC., concur.
Addendum
The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.