Opinion
June 4, 1929.
1. BILL OF EXCEPTIONS: Authentication. A purported bill of exceptions does not authenticate itself, and if the transcript of the record proper in a criminal case fails to show that a bill of exceptions was filed, or if the purported bill has not appended to it, or somewhere contains a certificate of the clerk as to its genuineness, correctness or authenticity, the matters of exception purporting to be preserved by such bill cannot be considered in the appellate court.
2. VERDICT: Charged With Completed Offense: Conviction of Attempt. Under the statute (Sec. 3693, R.S. 1919) a person charged with any offense may be convicted of any other necessarily included in the offense charged. Proof of a specific offense necessarily embraces proof of an attempt to commit such offense, and an indictment in which a completed specific offense is charged necessarily advises the accused that he may be confronted with proof of his attempt to commit that offense. Where the information charged defendant with fraudulently stealing certain parts and equipments of an automobile, a verdict convicting him of an attempt to commit that offense is valid and authorizes a judgment imposing the punishment assessed by the jury, although the statute (Sec. 29, Laws 1921, Ex. Sess., p. 105) denounces the completed offense and an attempt to commit it and places both in the same class as to the punishment that may be imposed.
Corpus Juris-Cyc. References: Criminal Law, 17 C.J., Section 3420, p. 129, n. 76, 78; Section 3441, p. 159, n. 26. Indictments and Informations, 31 C.J., Section 484, p. 856, n. 56.
Appeal from Clark Circuit Court. — Hon. Walter A. Higbee, Judge.
AFFIRMED.
T.L. Montgomery and J.S. Tall for appellant.
(1) The court erred in submitting the case on the information charging a felonious stealing, to the jury, on an attempt to steal, not charged in the information. (2) The information under the evidence did not charge any crime and the court should have given defendant's Instruction 1 in the nature of a demurrer to the evidence. (3) The verdict is against the law because the court submitted the case to the jury on attempting to commit a felony, when no such charge was made or alleged in the information.
Stratton Shartel, Attorney-General, and Walter E. Sloat, Special Assistant Attorney-General, for respondent.
(1) The information properly charges grand larceny of motor vehicle parts, follows the wording of the statute, and is in an approved form. Sec. 29, Laws 1921, Ex Sess., p. 105; State v. Mathes, 281 S.W. 439; State v. Caudle, 252 S.W. 702. (2) It was not necessary to charge an attempt of larceny in the information. When there are different degrees of an offense, the defendant may be found guilty of an attempt. Sec. 3692, R.S. 1919. The punishment for attempted larceny of an automobile, parts or equipment, is the same as though the crime had been committed. Laws 1921, Ex. Sess., p. 105. If the defendant is not convicted of the attempt when the evidence shows the crime was not completed, he cannot be tried later for the attempt. Sec. 3694, R.S. 1919.
The defendant was charged, in the Circuit Court of Clark County, with stealing certain parts and equipments of an automobile, of the value of $50 or more. Upon trial, the jury returned the following verdict:
"We, the jury find the defendant guilty of attempt grand larceny and assess his punishment at two years in the penitentiary with clemency."
He was sentenced to imprisonment in the penitentiary for two years, and appealed.
I. The transcript of the record proper shows the filing of an information by the prosecuting attorney, by which the defendant was charged with stealing certain parts and equipments of an automobile, of the value of $50 or more; that Bill of defendant waived formal arraignment and entered a Exceptions. plea of not guilty; that, upon trial to a jury, he was found guilty of "attempt grand larceny" and his punishment assessed at "two years in the penitentiary with clemency;" that he filed a motion for a new trial and said motion was overruled; that, upon allocution, he was sentenced to imprisonment in the penitentiary for two years, and judgment was entered accordingly; and that he filed "an affidavit for appeal" and was allowed an appeal to this court. Appended to the transcript of the record proper is the certificate of the Clerk of the Circuit Court of Clark County, in which the clerk certifies that it is a "full, true and complete transcript of the record and proceedings in the above-entitled cause." The proceedings of record so certified are properly preserved for our review. [State v. Keller, 304 Mo. l.c. 70, 263 S.W. l.c. 173.]
Attached to the transcript of the record proper is what purports to be a bill of exceptions and the same purports to have been signed by Walter A. Higbee, Judge of the 37th Judicial Circuit. The first and last pages of said purported bill of exceptions are stamped as follows: "Filed Dec. 5, 1928. Harry H. Lewis Clerk Circuit Court." And the transcript of the record proper, referring to the proceedings had on December 5, 1928, contains the following recital: "Now on this day comes the parties hereto and present to the court their Bill of Exceptions, which is this day seen, signed and sealed by W.A. Higbee, Judge of the Circuit Court." However, the transcript of the record proper fails to show that a bill of exceptions was ever filed in the trial court. Furthermore, said purported bill of exceptions has not appended to it, nor does it anywhere contain, a certificate of the Clerk of the Circuit Court of Clark County as to its genuineness, correctness or authenticity. The purported bill of exceptions does not authenticate itself, and, in the absence of a record entry showing that it was filed and a certificate of the clerk as to its correctness and authenticity, we are precluded from considering the matters of exception purporting to have been preserved thereby. [Sec. 4102, Laws 1925, p. 199, and Sec. 4103, R.S. 1919; State v. White, 315 Mo. 1276, 288 S.W. 18 (Court en Banc); State v. Kelsay, 18 S.W.2d 491.]
II. We now proceed to a consideration of the record proper, which, as above indicated, is properly before us. No attack is made on the information, and our examination discloses that it is entirely sufficient in form and substance, in charging the defendant with feloniously stealing certain parts Information: and equipments of an automobile. [Sec. 29, Laws Complete 1921 (Ex. Sess.), p. 105.] It is contended that, Offense: under this statute, a person cannot be charged Conviction of with feloniously stealing parts and equipments of Attempt. an automobile and be convicted of an attempt to commit that offense. The statute reads as follows:
"Sec. 29. (a) Any person who shall be convicted of feloniously stealing, taking or carrying away any motor vehicle, or any part, tire or equipment of a motor vehicle of a value of $30 or more, or any person who shall be convicted of attempting to feloniously steal, take or carry away any such motor vehicle, part, tire or equipment, shall be guilty of a felony and shall be punished by imprisonment in the penitentiary for a term not exceeding twenty-five years or by confinement in the county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000) or by both such fine and imprisonment."
It is true, as learned counsel contend, that the two offenses mentioned are separate and distinct offenses, and that this statute places them in the same class as to the punishment that may be imposed. But, from this, it does not follow that a person cannot be convicted of an attempt to commit a larceny of this character when charged with the actual commission of such a larceny. Section 3693, Revised Statutes 1919, after providing that a person charged with a felonious assault may be convicted of a lesser offense, says: "and in all other cases, whether prosecuted by indictment, information or before a justice of the peace, the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him." (Our italics.) An attempt to commit a certain crime is "necessarily included" in the commission of that crime. A person cannot commit any crime without attempting to do so. [See also Secs. 3683 and 3694, R.S. 1919.] Nor do the statutes, which authorize such convictions, violate the constitutional provision that the accused must be advised of "the nature and cause of the accusation." [Sec. 22, Art. II, Const. of Mo.] For the reason above stated, proof of a specific offense necessarily embraces proof of an attempt to commit such offense. And, therefore, an indictment or information in which a specific offense is charged necessarily advises the person so charged that he or she may be confronted with proof of his or her attempt to commit such offense.
We find no error in the record proper. The judgment is accordingly affirmed. Davis and Cooley, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.