State v. Bockman , 348 Mo. 656 ( 1941 )

Appellant was convicted of grand larceny by a jury in the Circuit Court of Shannon County and sentenced to imprisonment in the penitentiary for four years, for stealing two neat cattle, they being two steers belonging to Ike Spurgeon and worth $50, in violation of Sec. 4456, R.S. 1939, Sec. 4064, Mo. Stat. Ann., p. 2865. The case is here on the record proper only, appellant having failed to bring up a bill of exceptions. He has filed no brief.

[1] The information was signed and filed by John P. Moberly as "special prosecuting attorney by appointment of the court in the above entitled cause." Sections 12948 and 12949, R.S. 1939, Secs. 11322 and 11323, Mo. Stat. Ann., pp. 604, 605, authorize the appointment of a special prosecuting attorney when the regular and assistant prosecutors are disqualified by interest, kinship, prior professional relations, or they are sick or absent. The record here does not show a court order appointing Mr. Moberly as special prosecutor, but that is immaterial since right action on the part of the trial court is presumed; the error is waived where no exception was saved; and the mere fact that the court permitted Mr. Moberly to prosecute the case was tantamount to an appointment. [State v. Duncan, 116 Mo. 288, 307, 22 S.W. 699, 703-4; State v. Huett, 340 Mo. 934, 947, 104 S.W.2d 252, 259(7).]

[2] There is a typographical error in the information, which charged that the appellant feloniously stole "the followingperson property" etc. Obviously the word "personal" was intended. This did not invalidate the information. [Sec. 3952, R.S. 1939, Sec. 3563, Mo. Stat. Ann., p. 3160.] See many cases cited in 15 West's Mo. Dig., sec. 79, p. 500.

We find no error in the record proper, and the judgment is affirmed. All concur.