State v. Vaughn

223 Mo. 149 | Mo. | 1909

GANTT, P. J.

Defendant was convicted by a jury in the circuit court of Callaway county of an attempt to commit rape, and his punishment assessed at six years in the penitentiary. On motion his punishment was reduced to three years in the penitentiary and he was sentenced accordingly. From that judgment he has appealed to this court. The transcript is in a most unsatisfactory shape and we must again admonish both counsel and the clerks of the circuit and criminal courts to see that the transcript shall show that the matters of record proper are kept distinct from the bill of exceptions, as was pointed out in Stark v. Zehnder, 204 Mo. 449. However we have gone through the record and have concluded that there is sufficient therein to indicate what is record proper and that which is in the bill of exceptions.

It appears that on January 9, 1908, an affidavit was made before J. B. Hyde, a justice of the peace, charging the defendant with the crime of burglary, and on January 29,1908, there was a preliminary hearing of the said charge which resulted in the justice holding the defendant to answer before the circuit court at its next regular term in May, 1908, to the said charge. The transcript was duly filed with the clerk of the circuit court and at the said May term, 1908, the grand jury investigated the charge and reported “not a true bill.” Afterwards on the 18th of September, 1908, the prosecuting attorney filed with the clerk of the circuit court an information charging the defendant in two counts with the charge of burglary in feloniously breaking into State Hospital Number One located at Fulton, Missouri, in the first count with intent to make an assault upon one of the inmates therein, and in the second with the intent to take, steal and carry away the goods and chattels belonging to the State in said hospital then and there kept. In due time a motion to quash was filed and overruled and thereupon the defendant was arraigned and entered his plea of not guilty, on December 7, 1908. After-wards on December 14, 1908, by leave of court, the prosecuting attorney filed a new information, which was also in two counts. On the 7th of January, 1909, and during, the said December term, 1908, David H. Harris, Esq., was duly elected and qualified as special judge of the said circuit court and on the 8th of January 1909, defendant was put upon trial upon the said amended information, and the jury failed to agree and were discharged, and the cause was continued until the first day of February, 1909, on which day it was set down for trial on Wednesday the 3rd day of February, and on the last mentioned day the jury was impaneled, selected and sworn, and after hearing the evidence returned their verdict finding the defendant guilty under the first count in the information and assessing his punishment at six years in the penitentiary. In due time he filed Ms motions for new trial and in arrest of judgment which were heard and overruled, and thereupon on motion his punishment was reduced to three years in the penitentiary and he was sentenced accordingly.

I. The first assignment of error is that the defendant was tried upon the amended information without having been arraigned or any plea entered by Mm or in Ms behalf by order of the court. A careful examination of the record discloses that this is true and no suggestion has been made on the part of the State that the transcript is defective in that respect.

There is in our criminal practice no proposition better settled, by a long line of precedents, than that a trial cannot proceed against a prisoner, for an offense for which he has not been arraigned and to which he has not pleaded guilty. Time and again it has been ruled that where the record in this court shows no arraignment, the judgment must be reversed. [State v. Saunders, 53 Mo. 234; State v. Boatright, 182 Mo. l. c. 52; State v. Williams, 117 Mo. 379; State v. Walker, 119 Mo. 467; State v. West, 84 Mo: 440.]

The arraignment and the entering of a plea is a matter which must be entered upon the record proper and is not a matter of mere exception. F'or this error alone, if no other, the judgment must be reversed and the cause remanded.

II. Inasmuch as the judgment must be reversed and it may be the cause will be tried again, we have concluded we should express our opinion upon the admissibility of the testimony of Mrs. Bruner and Miss Peters as to statements made to them by Mrs. Arnold during the night or early morning of January 4, 1908, and after she was found out of the room she usually occupied. These statements were in no sense a part of the res gestae. They were clearly narrative of a past transaction. They were hearsay. More than this, if Mrs. Arnold, under the showing made in this record, had been offered as a witness, she would have been incompetent for the reason that she was insane. Having been shown to be insane and committed to the hospital for the insane, the presumption is that she continued insane at the time she made the statements attributed to her. [30 Amer. and Eng. Ency. 935 bb; Hottle v. Weaver, 206 Pa. St. 87.] Without this evidence there was little if anything tending to establish the charge of which the defendant was found guilty, and it is apparent that this testimony was hurtful in the extreme.

Other propositions for reversal are advanced by the learned counsel for the defendant but they are such as can he readily avoided on another trial if it shall be deemed advisable to prosecute the cause further. For the errors noted the judgment is reversed and the cause remanded.

Burgess and Fox, JJ., concur.