State v. Parks , 165 Mo. 496 ( 1901 )

BURGESS, C. J.

On the third day of January, 1901, there was filed in the office of the clerk of the circuit court of Moniteau county, by N. C. Hickcox, prosecuting attorney, the following information against the defendant Ambers Parks, for grand larceny:

“In the Circuit Court of Moniteau County, January term, 1901.

“The State of Missouri,

against

“Ambers Parks.

“N. C. Hickcox, prosecuting attorney within and for the county of Moniteau, in the State of Missouri, under his oath of office and upon his best knowledge, information and belief, informs the court that on the tenth day of November, 1901, at the county of Moniteau and State of Missouri, Ambers Parks, one sorrel horse, of the goods and chattels of one J. T. Ellis then and there being, did unlawfully and feloniously steal, take and carry away, against the peace and dignity of the State.

“N. C. Hickcox, Prosecuting Attorney.”

At the same term of court at which said information was filed, defendant was put upon his trial, found guilty, and his punishment fixed at two years’ imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest, he appeals.

The facts disclosed by the record are substantially as follows : Defendant lived and had been working for one Long, in Moniteau county, who had in his possession a-horse which belonged to one J. T. Ellis, which he (Long) was in the possession of under a contract with Ellis. Defendant, having worked for Dong, was familiar with the location of the place and'with the' stock upon the farm, and, according to his own statement, on the ninth day of November, 1900, went to the barn between dusk and sundown and took the horse and rode him to California, where he sold him for $61.50. The testimony of Long is that the horse must have.been taken after nightfall, because it was dark when he fed him on the evening of the ninth, of November, which was the day he was taken.

After selling the horse, defendant purchased a hat, put his old cap in his pocket and started towards his home, eighteen or twenty miles distant. He was soon overhauled by the sheriff who had learned of the loss of Long’s horse, and when arrested, had all but about two dollars of the money in his possession, five or six dollars of which were in his pocket, and the remain-, der in bills rolled up in his sock. When arrested, according to the testimony of the sheriff, the defendant denied having any money except the five or six dollars, and denied any knowledge of the horse.

Defendant testified that Long told him that he (Long) would take sixty-five dollars for the .horse, and said he took the horse to California to sell him, thinking that he could get more than sixty-five dollars and that the remainder would be his. Long’s testimony was to tire effect that the horse was taken without any authority from him to the defendant so to do.

The defendant introduced several witnesses who swore that up to the time of his trouble he was possessed of a good character for integrity and for truth and veracity in the neighborhood in which he lived.

The defendant’s mother and defendant himself testified ■that he had a long spell of typhoid fever in 1892, and the mother swore that he never was very clear mentally since. The physician, who attended him, testified that he had a very severe spell of typhoid fever. There were one or two other witnesses who testified that defendant was not very bright, but that he was a married man, attended to his own transactions and worked for a living in the neighborhood in which he lived, being employed most of the time on the farms in that vicinity.

On the eighth day of November, 1900, section 12, article 2, of the Constitution, was amended by a vote of the people so as to authorize the prosecution of felonies by indictment or information as concurrent remedies, except as to land'or naval forces or the militia in actual service in time of war or public danger.

Defendant makes the point that no legal complaint was ever filed against him, and that no indictment had been found against him by the grand jury of Moniteau county, and that a felony committed November 9, 1900, should be prosecuted by indictment; that the information was not sworn to by the prosecuting attorney of Moniteau county, nor supported by or based upon the affidavit of a private citizen as required1 by law, and that the information was improperly signed, in that the prosecuting attorney signed it “N. C. ILickeox,” claiming that the letter “N” constituted no name, and is not in\ compliance with the statutes of Missouri relating to informations.

One of the contentions of the defendant is that the change in the organic law of the State affected his constitutional rights in this, that at the time of the commission of the offense, on the ninth of November, the amendment as to informations was not yet operative and did not become so until the twentieth of December, 1900, and that on the ninth of November, the law requiring felonies to be prosecuted by indictment by a grand jury was yet in force, and that a prosecution in January, 1901, for a felony committed in November,' 1900, would operate as an ex post facto law so far as defendant is concerned by reason of the change in the fotm of the prosecution of the crime from that of an indictment to that of an information.

The only points made, to-wit, that the amendment to the Constitution was ex post facto in so far as the offense with which defendant stands charged, and the invalidity of the information filed by tbe prosecuting attorney against defendant, and all proceedings thereunder, were passed upon in the case of State v. Kyle, 166 Mo. 287, and ruled adversely to defendant’s contention. We have nothing to add to what was said in that case, and therefore affirm the judgment.

All concur.