State v. Skillman

FOX, P. J. On tbe 17th day of December, 1906, A. B. Ludwick, prosecuting attorney of Bates county, filed an information, duly verified, charging defendant with defiling one Myrtle McCulloch, a female under tbe age of fifteen years, alleged to have been confided to bis care and custody, thus sustaining to him tbe relation of ward. On February 7, 1907, W. B. Dawson having been elected prosecuting attorney, an amended information was filed. This amended information was in two counts. Tbe first count followed tbe former information, except in tbe manner of its conclusion, and tbe second count charged that tbe defendant was guilty of carnal knowledge of a female between tbe ages of fourteen and eighteen years, of previously chaste character. The defendant moved to quash tbe first information, but this tbe court refused to do, leaving both standing. Tbe regular judge of tbe court having been disqualified, Hon. W. H. Martin, judge of tbe Fourteenth Judicial Circuit, was called in to preside at tbe trial. Tbe case coming on for trial, tbe second count of tbe amended information was dismissed, and after a mistrial tbe defendant was convicted upon tbe first count of said amended information and bis punishment assessed at imprisonment in tbe penitentiary for a term; of two years. Motions for new trial and in arrest of judgment were filed in due time and by tbe court overruled. Judgment and sentence having been [411] entered in conformity to the verdict, defendant appeals. The sufficiency of the first count of the amended information upon which this prosecution and judgment are predicated being challenged, we deem it proper to reproduce it. It was as follows: “Now on this 6th day of February, 1907, comes W. B. Dawson, prosecuting attorney within and for the county of Bates and State of Missouri, and informs the court on his official oath that on the ----day of July, 1906, one Andy Skillman, late of the county of Bates and State of Missouri, at the county of Bates and State of Missouri, being then and there a person to whose care and protection one Myrtle McCulloch, a female under the age of eighteen years, to-wit, of the age of fifteen years, had been and was then and there confided, her, the said Myrtle McCulloch, unlawfully and feloniously did defile, by then and there unlawfully and feloniously carnally knowing her and having carnal knowledge of her body while she remained in his care and protection, custody and employment, she, the said Myrtle McCulloch, being then” and there confided to the care, custody and employment of the said Andy Skill-man, against the peace and dignity of State.” It is not essential to detail the testimony introduced on the part of the State or of the defendant upon the trial of this cause. It is sufficient, in order to determine the legal propositions involved in this controversy, to simply state that the testimony was conflicting, the testimony on the part of the State tending to establish the charge as contained in the information, and that on the part of the defendant to establish the innocence of the defendant of such charge. This is a sufficient reference to the disclosures of the record, and the cause is now before us for consideration. [412] OPINION. The brief of learned counsel for appellant presents but one proposition for our consideration, that is, that the first count of the amended’ information upon which this prosecution and judgment are predicated fails to conclude “against the peace and dignity of the State,” as required by section 38, article 6 of the Constitution of this State. The conclusion to the information in judgment before us is. in this language: “Against the peace and dignity of State,” and the complaint of counsel for appellant is directed to this conclusion on the ground that the word “the” is omitted immediately preceding the word ‘ ‘ State. ’ ’ We were confronted with this identical proposition in the case of State v. Bruce Campbell, 210 Mo. —. What was said in the discussion of this proposition in that case is applicable to the same proposition involved in the ease at bar, and must be held decisive of it. It was there ruled that the conclusion to the indictment did not conform to the terms prescribed by the Constitution, and the same ruling must be made in the case at bar. It is therefore ordered that the judgment of the trial court in this cause be reversed and the cause remanded, to the end that such further orders may be made concerning this cause, touching a new charge, as the court may deem proper, in accordance with the provisions of the statute. All concur.