197 Mo. 376 | Mo. | 1906
The prosecuting attorney of McDonald county, on July 1, 1905, filed an information in the office of the clerk of the circuit court of said county,
I. The information is grounded on section 2365, Revised Statutes 1899, which provides: “Every person not standing in the relation of husband or wife, parent or grand-parent, child or grand-child, brother or sister, by consanguinity or affinity, who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, and no other, shall be deemed an accessory after the fact, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in a county jail not less than three months. ’ ’
Owing to the utter disregard of all the technical requirements in the preparation of the bill of exceptions in this cause, and in the certification of the record
In the consideration of the sufficiency of this verdict, it must be borne in mind that it is well-settled law in Missouri that if the verdict, which is a part of the record, is not responsive to the issue, or is uncertain or indefinite, it is open for review on appeal or writ of error as a part of the record proper. Had the jury said, “We the jury find the defendant guilty,” or had they said, “We the jury find the defendant guilty as
II. The information is assailed as insufficient because, it is asserted, it charged that before the defendant could claim his exemptions from the statute creating the offense with which he is charged, he must be related as set out in the statute to both Eller and Winslo.
The allegation of the information on this point is, after alleging the larceny of Eller and Winslo and feloniously receiving and aiding the said Eller and Wins-lo, with the intent that they might make their escape, “The said Charles Modlin then and there not standing in the relation of husband or wife, parent or grandparent, brother or sister, by consanguinity or affinity, to the said Floyd Eller or Joe Winslo.” The learned counsel for the defendant in their copy of the information have inserted the word “and” instead of the word “or” between the words “Floyd Eller and Joe Wins-lo” and it is upon this use of the conjunctive, instead of the disjunctive, that their contention is based.
Of course,this court is bound by the certified record in this case and the record uses the disjunctive“or” instead of the conjunctive “and,” and hence the very ingenious criticism and argument of the learned counsel for the defendant must be held to be based upon a misapprehension of the information, and our conclusion is that the information does not narrow any of the rights of defense given to the defendant by the terms of the statute under which he was prosecuted.
For the reason that the verdict, in our opinion, is not responsive to the information and is indefinite and uncertain, the judgment of the circuit court must be and is reversed and the cause remanded.
It would, of course, have been far more satisfactory to us to have examined and considered the evidence and the instructions together, but under the set-
Judgment reversed and cause remanded.