THE STATE v. ANTON LATHAM, Appellant.
Division Two
February 21, 1939
124 S. W. (2d) 1089
Accordingly, that portion of respondents’ opinion in conflict herewith and the record made pursuant thereto should be and is quashed. Cooley and Westhues, CC., concur.
PER CURIAM: — The foregoing оpinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.
William A. Seibel for appellant.
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 seсond 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 twо transcripts respectively, which will be noted hereinafter. No explanation appears in the record before us for the filing of a second trаnscript.
It was appellant‘s duty, under
Omitting caption, signature and verification, the information, as copied in said second transcript, reads:
“INFORMATION
“Comes now Carl F. Wymore, Prosecuting Attorney within and for the County of Cole and State of Missouri and upon his oath of office informs the Court that one Tony Latham, late оf the County of Cole and State of Missouri, on the 23rd day of May, 1937, at the County of Cole and State aforesaid, did then and there unlawfully and feloniously steal, take аnd carry away one International Truck, Motor Number — — of the goods and personal property of Eggers’ Garage, and of the approximate value of $400.00, with the intent to deprive the owner of the use thereof, and to convert same to his own use, contrary to the form of the Statute in such case mаde and provided; and against the peace and dignity of the State.”
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
Appellant contends that the information, both as originally filed and as amended, is fatally defectivе 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 becаuse the names of the partners are not alleged. He cites State v. Kelley, 206 Mo. 685, 105 S. W. 606, State v. Henschel, 250 Mo. 263, 157 S. W. 311, and State v. Hurt (Mo.), 285 S. W. 976, which tend to sustain his contention, but those cases and a number of others announcing like dоctrine were considered and in effect overruled on that point in State v. Carson, 323 Mo. 46, 18 S. W. (2d) 457. That was a prosecution for selling mortgaged property without consent of thе mortgagee and without informing the purchaser, with intent to defraud the mortgagee. The mortgagee was named in the information as the “Citizens’ Bank of New Franklin” with no аllegation that it was a corporation or whether it was an incorporated bank or a private bank owned by one or more individuals. The defendant was convicted and the trial court sustained his motion for new trial on the ground that the information was fatally defective for failure to allege that said Citizens’ Bank of New Franklin was a corporation. The State appealed and this court reversed the judgment of the trial court and remanded the cause with directions to that court to overrule the motion for new trial and reinstate the verdict. WHITE, J., speaking for the court, in an exhaustive and well reasoned opinion, reviewed prior decisions of this court in burglary and larceny cases, including the Kelley, Henschel and Hurt cases, supra, as well as cases from other jurisdictions and held thаt the failure of the information to allege that the Citizens’ Bank of New Franklin was a corporation did not render it fatally defective, so as to be insufficiеnt to support the verdict. The opinion refers to and discusses the Statute of Jeofails,
“Whenever on the trial of any felony or misdemeanor, there shаll 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 оr 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 thаt such variance is material
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 omission 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 tо 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 mortgagеd 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.
PER CURIAM: — The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.
COOLEY, C.