Opinion
No. 42858.
May 12, 1952.
APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY, REX V. McPHERSON, J.
Enid Clay Stubblefield, pro se.
J. E. Taylor, Atty. Gen., Gordon P. Weir, Asst. Atty. Gen., for defendant in error.
This case comes here upon a writ of error. On March 2, 1951, plaintiff in error (hereinafter called defendant) upon a plea of guilty was sentenced in the circuit court of Newton County to the penitentiary for two years upon a charge of burglary and two years upon a charge of larceny, a total of four years. This writ brings but the single question of the sufficiency of the information as to the burglary charge. Defendant now asks "that said cause be reversed as to the burglary conviction for the reason that said information is fatally defective and will not support a judgment, and in addition thereto that said sentence be corrected by this court." Defendant has not attacked the judgment of conviction as to larceny.
The information attacked is in one count, as authorized by Section 560.110 RSMo 1949, V.A.M.S. and is in these words:
"John M. Rice, Prosecuting Attorney within and for the County of Newton in the State of Missouri, informs the Court that Enid Clay Stubblefield on the 4th day of December, 1950, at the said County of Newton did then and there unlawfully, willfully, feloniously and burglariously break into and enter the garage building of the W. L. Bond Motor Company, the same being a building in which divers goods, merchandise, and valuable things were then and there kept and deposited with intent the goods, chattels and personal property to take, steal and carry away, and $15.00 lawful money of the United States of the goods, chattels and personal property of W. L. Bond and Fred Bond, co-partners, doing business as W. L. Bond Motor Company then and there in said building being found unlawfully, willfully and feloniously, did steal, take and carry away against the peace and dignity of the State."
Specifically, defendant contends the above information "is fatally defective and insufficient to sustain a conviction of burglary for the reason that nowhere is it alleged that the said W. L. Bond Motor Company was a co-partnership, a corporation, or individual"; and says that the "charging part of the information lacks the magic words showing the ownership of the building supposedly entered into". Defendant relies on State v. Jones, 168 Mo. 398, 68 S.W. 566, State v. Kelley, 206 Mo. 685, 105 S.W. 606 and State v. Henschel, 250 Mo. 263, 157 S.W. 311.
But the Jones, Kelley and Henschel cases, supra, relied on by defendant have been expressly overruled. See, State v. Carson, 323 Mo. 46, 18 S.W.2d 457; State v. Latham, 344 Mo. 74, 124 S.W.2d 1089; State v. Quinn, 345 Mo. 855, 136 S.W.2d 985 and State v. Dowling, 360 Mo. 746, 230 S.W.2d 691.
It is to be noted that the above instant information did allege and inform defendant that W. L. Bond and Fred Bond were "co-partners, doing business as W. L. Bond Motor Company". But defendant bases his complaint upon the fact that, as to the burglary, it was not charged in the information that W. L. Bond Motor Company was or was not a corporation, partnership or individual.
In State v. Hedgpeth, 311 Mo. 452, 278 S.W. 740, 741, we said that: "Proof of the appellant's guilt of the crimes charged, or either of them, did not depend upon establishing the fact of the oil company's incorporation, but upon the question as to whether the appellant feloniously broke into the premises of another, and, to establish the larceny, that he stole from such premises the property described in the charge. While the corporate existence of the oil company was alleged in the information, it was a mere matter of description to enable the owner to be more readily identified. Whether, therefore, the owner of the premises be a corporation, a partnership, or an individual is not material to the appellant's defense or in the establishment of his guilt."
Under the above cited cases the sole contention made by defendant is without merit.
We have examined the record proper. The information and judgment are in proper form and are sufficient. Defendant was granted allocution. The judgment of the circuit court is affirmed. It is so ordered.
All concur.