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Summers, in West Plains. There were a number of other boarders, and on the day of the assault by the defendant, which resulted in the death of the deceased, the two had some hot words at the dinner table, growing out of a casual remark made by Mr. Summers, the landlord, that he had read that morning of a threatened strike of a large number of railway engineers.

fendant, fearing that he would again strike the deceased, and said, "For God's sake, don't do this." The defendant did not repeat the assault, but asked the doctor if he thought the deceased was hurt. The doctor said he could not tell. They lifted the body off of the walk and laid it on the grass. The deceased during this time was writhing in paroxysms of pain and muttering names said to have been those of his brother and his affianced, and, catching convulsively at his head, exclaimed at intervals, "Oh, mother, Oh, my head," or words of kindred import. He never regained consciousness but died that night between 7 and 8 o'clock. His death was caused by a hemorrhage at the base of the brain, caused either directly by the blow inflicted by defendant or indirectly by the deceased striking his head when falling on the cement walk in consequence of defendant's blow.

The deceased was a small man, about five feet and four or five inches in height, weighing 130 or 135 pounds. The defendant was six feet in height and testified that he weighed from 160 to 175 pounds. After striking the deceased, the defendant went before a justice of the peace and attempted to enter a plea of guilty to a common assault, but his plea was not permitted to be made.

Defendant and the deceased bandied words with each other in a sarcastic vein as to what each thought would be the result of the strike, until remonstrated with by Mr. Summers and his daughter. Defendant finished his meal and went out and sat down on the front porch in company with Dr. Ballenger, another boarder, saying as he came out that "this was the second time that fellow (meaning deceased) had butted into him, and that he did not have to stand it if he was a preacher; that he might backslide a little, but it would not hurt him to do that." Ten or fifteen minutes later the deceased, who, upon leaving the table, had gone out at the back door, came around the house, softly humming a tune, and, as he reached the end of the porch, said pleasantly to the doctor, "Are you going up town to get your mail?" Ballenger replied, "No, it is a little early yet; I don't believe I will go." The defendant, who had not been addressed, said, "I will go with you if you will repeat what you said at the table." Deceased said, "What did I say?" Defendant replied, "You insulted me;" to which the deceased replied, "Well, if I did, I am sorry, and I will apologize." The defendant in the meantime had risen and walked down in front of the deceased, who was standing on the walk, saying, as he reached him: "This makes twice you have done that. If you will just step out into the street with me, I will whip you until your friends won't know you." To this the deceased replied: "No, I won't go. I don't want any trouble. If I have hurt your feelings, I am sorry, and I am willing to apologize." The deceased then started down the walk towards the front gate; the defendant keeping in front of him. As they went the doctor heard the deceased say, "I have too much respect for this home to have trouble, and I don't want to have any trouble." Defendant replied, "Come back into the alley, and there won't be anybody know anything about it." Deceased then stepped aside off of the sidewalk, and said, "No, I won't go with you anywhere." This was the last co-constable of the township in which West herent remark the deceased made. Defend ant then caught the deceased by the lapel or collar of his coat, and, swinging him around facing defendant, said, "You dirty low-down cur, I am going to whip you here." At this defendant struck the deceased with his fist on the temple or side of the head, felling him to the ground. His head struck the edge of the cement or concrete walk, and Dr. Ballenger, who until then had remained

The foregoing presents the material facts testified to by witnesses for the state. Defendant testified in his own behalf. His testimony was utterly at a variance with that of other witnesses, except that of two women, who testified for the defense. One of these was a Mrs. Lillian Simpson, who was shown to have been sitting with her back to where the defendant and deceased were standing when the fatal blow was struck, and who stated immediately thereafter that she did not know anything of the affair and could not testify in regard thereto; nevertheless she went on the stand and testified affirmatively and in detail that the deceased was the aggressor. The other was a young woman, who was at some distance from where the two men were standing when the blow was struck, whose testimony tended to sustain defendant's statements. The jury gave no credence, and properly so under all of the facts, to the testimony of these three witnesses, and time and space need not be occupied in its discussion; there being ample evidence to sustain the verdict.

The killing occurred June 4, 1914 The

Plains is located went before a justice of the peace and filed a complaint charging the defendant with having killed "Olin Connell" by striking him on the head with his fist. Defendant's contention with regard to the sufficiency of this complaint renders the justice's docket entries in regard thereto material. Omitting caption, signatures, jurat, certificate as to genuineness, and the circuit clerk's filing mark, all of which are not questioned,

"On the 4th day of June, A. D. 1914, before ed and the deliberations of a grand jury Geo. Halstead, justice of the peace within and dispensed with. for the county aforesaid, comes Ben Hollingshad and files complaint against defendant, and on his oath says on or about the 4th day of June, A. D. 1914, in Howell county, the defendant did then and there willfully and unlawfully and feloniously kill Olin Connell by striking him (the said Connell) on the head with his fist. Same day I issued warrant for the apprehension of defendant and delivered the same to Ben Hollingshad, constable. June 4, 1914, warrant returned executed by bringing before me at my office, in Howell township, the body of defendant, as commanded. June 4, 1914, comes now the defendant, who, having seen and heard read the affidavit filed, says that he could not be ready for a hearing until June 15th, hearing set for June 15th and bond fixed at $2,000, which was furnished with (name of principal and sureties), and approved by the court. June 9, 1914, comes defendant by attorneys, and informs the court that he waives the preliminary hearing heretofore set for the 15th of June, and the court fixes his bond for $2.000 for his appearance at the next term of circuit court, with (name of principal and sureties) as securities. Which bond was approved by the court and the same certified to the clerk of the circuit court."

on

On the 22d day of June, 1914, the prosecuting attorney of Howell county filed an information charging the defendant with murder in the second degree in having struck and killed Olin McConnell. Motions to quash were filed assailing the information grounds dehors the charge itself, in that no complaint had been filed precedent to the filing of the information charging a felony, and that the name of the deceased was not properly set forth, and that, by reason of such defects, defendant had not been accorded the right of a preliminary examination, as required by section 5056, R. S. 1909, as amended by Laws of Missouri 1913, p. 225. The overruling of the motions to quash is contended by the defendant to have been reversible error.

The authority thus granted was also intended to prevent suspected persons from escaping and to secure their presence for a trial if subsequently indicted or an information was filed against them. The examination, therefore, was in no sense intended as a trial, in which the guilt or innocence of the accused was finally determined, but simply that the possibility of an abuse of power by the prosecutor might be prevented; and if the facts adduced satisfied the justice that an offense had been committed, and there was probable cause to believe the accused was guilty, his detention was authorized until an information or indictment be found. This being the purpose, it follows that the complaint, upon which the examination is based, need not be framed with the same particularity as an indictment or information, but will be sufficient if it states the offense in substance, so that the accused may know the nature of the charge preferred against him. There are other cogent reasons why this complaint need not be as definite and certain as an information or indictment.

Ordinarily an arrest cannot be made without a warrant, and a justice has no authority to issue a warrant, unless a complaint has been made before him. This complaint may be made by any one cognizant of the facts, and the requirements of the statute (section 5020, R. S. 1909) are that it shall be in writing and upon oath. Oftentimes it is of necessity made by laymen, who are not only unfamiliar with the terminology of the law but wholly ignorant of criminal pleading. To hold that a complaint authorized to be filed under such conditions should conform to the rigid rules of criminal procedure would be to destroy the purpose of the statute, which, in [1, 2] The Complaint.-Precedent to the addition to the objects stated, provides a way filing of an information by a circuit or pros- by which the defendant may be legally arecuting attorney charging any person with a rested and, if probable cause is found to exist, felony, the person charged shall be accorded detained until an indictment or information the right of a preliminary examination. Sec- may be preferred against him. His legal artion 5056, as amended, supra. To authorize rest is therefore of equal importance and of an accused to demand this right, complaint more effective force in the administration of must have been made against him in writing the criminal law than the filing of the comunder oath, before a justice of the peace of plaint upon which the warrant of arrest is the county, setting forth that a felony has based. Having accomplished this purpose, been committed, and naming the accused, the defects and informalities of the comwhereupon the justice of the peace is requir-plaint, unless it fails utterly to state the subed to issue a warrant for the apprehension stance of the offense with which the accused of the person charged. Upon being appre- is charged, should not be held sufficient to inhended, the accused may demand or waive a validate the subsequent proceedings. preliminary examination. This court, in In the instant case the complaint charges, State v. Jeffries, 210 Mo. loc. cit. 320, 109 S. not, perhaps, with the precision and formality W. 614, 14 Ann. Cas. 524, and in State v. Sas-prescribed in the books, but with enough cersaman, 214 Mo. 695, 114 S. W. 590, has fully tainty to leave no doubt as to the time, place, defined the object and purpose of a prelimi- and nature of the offense, that "defendant did nary examination to the effect that the right then and there willfully, unlawfully, and feto same was accorded to obviate the possi-loniously kill Olin Connell by striking him bility of groundless or vindictive prosecutions (the said Connell) on the head with his fist." which the Legislature evidently deemed might This averment suffices to charge manslaugh

3 Bish. Cr. Pro. (2d Ed.) §§ 501, 502; Bish. Dir. & Forms (2d Ed.) § 520; Kelly's Cr. L. (3d Ed.) § 503. The complaint, therefore, charged a felony and, aided by the warrant, effected the arrest of the accused, and the requirements of the law of its creation were satisfied. This being true, in what manner was the accused prejudiced by the fact that he was alleged to have killed "Olin Connell" instead of "Olin McConnell?”

the St. Louis Court of Appeals in State v. Hoeffner, 44 Mo. App. 543.

[5] Further than this, the Constitution of this state (section 12, art. 2) provides that: "No person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information.'

If, therefore, a preliminary examination before a justice, upon a complaint charging a felony, is not an exercise of judicial power, [3] Defendant knew the nature of the and not such a criminal prosecution as is charge preferred against him, the time when authorized by the Constitution, the sufficiency and the place where it was alleged to have of such a complaint should not be measured been committed. Possessed of this knowledge, by the rules in regard to indictments and inin what respect could he have suffered injury formations, and this could not well be otherif the complaint had charged him with hav-wise when the purpose of such complaints is ing struck and killed "John Smith" instead of kept in view. Olin McConnell? The purpose of the complaint and the issuance of the warrant thereon, as we have stated, was to accord the defendant a right to an examination and to prevent his escape. The complaint was filed on the day of the commission of the crime, and defendant, instead of availing himself of the

We are therefore of the opinion that a complaint is sufficient which states the substance of the felony, the time and place of Under a reasonable interpretation of the its commission, and the name of the accused. statute, this is all that should be required. The alleged insufficiency of the complaint,

whereby it is contended that the defendant is the only error assigned by the able and inwas not accorded a preliminary examination, dustrious counsel for the defense.

We hold it without merit, which results in an affirmance of this judgment; and it is so

ordered.

right which the law accorded him, and at that time raising any and all questions he deemed proper as to the alleged defects of the charge, asked that the examination be postponed. This was done, and, before the day appointed for the hearing, he waived an examination and entered into a recognizance for his appearance at the circuit court. Under these FARIS, P. J., concurs in a separate opincircumstances, after an information has been filed against him, based upon the charge made ion, in which BROWN, J., joins. BROWN, J., in the complaint, his motion to quash the information upon the specious plea that defendant had not been accorded a preliminary hearing was, by the trial court, properly overruled. It has been held elsewhere, and we approve of the ruling, that a defendant, to avail himself of defects in a complaint, such as is here being considered, should object thereto before the examination. People v. Smith, 1

Cal. 9.

concurs in result.

FARIS, P. J. I concur in affirming this case for the reason that I am of opinion that ination, waived the error in the complaint as defendant, by waiving a preliminary examto the name of the person alleged to have been killed by defendant.

The situation presents a case of a technical error; a sort of pit for the feet of the unlearned digged by the Legislature-a pit, by [4] Courts should not lend themselves to the way, which has been biennially for years subterfuges as defenses to criminal prosecuon end, alternately dug by one Legislature tions, where not even an intimation of preju- and filled up by another. In passing, we redice is made. The time has passed, not only call appreciatively the ingeniousness and in this state, but elsewhere, when pure tech- candor of defendant's learned counsel in adnicalities, in the absence of evidence of well-mitting in oral argument that the prelimi defined injury to the accused, will be permit-nary hearing was waived with the deliberate ted to obstruct the enforcement of the crim-intention thereby to inject error into the case upon its trial below.

inal law.

In State ex rel. v. Nast, 209 Mo. 708, 728, 108 S. W. 563, this court held that a complaint charging a felony before a justice, under which a preliminary examination was authorized, did not involve an exercise of judicial power; that while justices, within the well-defined limits of their jurisdiction, perform the functions and exercise the powers of courts, they do not as examining magistrates act judicially but ministerially. 1 Bish. New Cr. Pr. (4th Ed.) p. 237; Nast Case, supra, 209 Mo. 730, 108 S. W. 563. We so held in an earlier case (Ex parte Bedard, 106 Mo. 616,

If "Connell" and "McConnell" are not idem sonans, and obviously they are not (Myers v. De Lisle, 168 S. W. 676, 52 L. R. A. [N. S.] 937, not yet reported officially; 29 Cyc. 276, and cases cited), I see no safe ground upon which to base an affirmance, except that of waiver.

Let me briefly array the facts: Defendant appeared June 4, 1914, and heard and had read to him, the record says, the complaint now attacked as rendering the information based on it quashable. He then begged the indulgence of a continuance for 11 days, so

recognizance, this could have been reached by some other statutory provision, while the filing of an information against the accused would immediately put him in jail or force him to his writ of habeas corpus, but for the right he has to have accorded him a preliminary examination. The examining magistrate is not expected or empowered to determine the guilt or innocence of the accused, or to nicely or irrevocably determine the precise offense of which he is guilty. The statute says:

tion, and gave bond that he would appear | latter view. For, though I am mindful of thereat. On June 15th he again appeared, the provisions as to putting witnesses upon waived the preliminary examination, and suffered his bond to be fixed at $2,000, for his appearance before the circuit court to answer any indictment or information which might be preferred against him. He gave this bond and did appear, and on his appearance in the circuit court objected by his motion to quash, for the very first time, to the error in the complaint which wrongly recited the name of deceased. I think on these facts he waived the error in the complaint. Likewise I think, but am not called on to decide, that, if he had gone into a preliminary examination on the complaint as it stood, he would clearly have been entitled to his discharge

thereon.

matters connected with such examination.

"If it appears that a felony has been committed [not the felony], and that there is probable (section 5036, R. S. 1909), he may let him to cause to believe the prisoner guilty thereof" bail if the offense be bailable (section 5039, R. S. 1909), "provided the preliminary examination is not to be had when accused sees fit to waive it." Laws 1913, p. 225, supra.

It is manifest, I think, that if a preliminary examination may be waived, and the statute specifically so provides (Laws 1913, p. 225), then it follows that the defendant, in What does he waive? Clearly, I think he exercising his statutory privilege to waive waives that which the magistrate was requirthe preliminary examination, likewise must ed to find, viz., that a felony had been combe held to have waived all irregularities inmitted, and that there was probable cause to believe the accused committed it. And, by a Even a waiver of the right to a preliminary waiver of such examination, accused in efexamination will be implied, when no such fect admits, for all and singular but only for waiver in fact occurred, when the accused the legal purposes, objects, and intents of the gave bail for his appearance at the next term preliminary examination, all that such magof court in a case wherein no complaint what-istrate was required to find, viz., that a crime ever had been filed against him (Cunningham has been committed, and there is probable v. State, 116 Ind. 433, 17 N. E. 904), or when he suffers himself to be bound over for trial without objection, and after he, in fact, had pleaded not guilty (State v. Ritty, 23 Ohio St. 562). Is not the absence of any complaint

whatever a more serious defect than a mere error of misnomer in a complaint otherwise good?

This state of the law considered, in analogous cases which are stronger in some aspects than the condition confronting us in the instant case, I feel no manner of doubt that

defendant may not deliberately ambush the trial court, as was done here, but that he ought to be held to have waived any error and imperfection in the complaint, such as a minor mistake in the name of the deceased.

I think it is to be deduced as a rule, in the absence of a statute, that in the final analysis a preliminary examination is and has ever been for the benefit of accused; that he may not be unjustly and without proof, or probable cause, incarcerated or forced to find bail. This does not militate in any way against the view taken in State v. Jeffries, 210 Mo. loc. cit. 320, 109 S. W. 620, 14 Ann. Cas. 524, where it was said:

"The preliminary examination, after all, is but an expedient to prevent a suspected person from escaping and to preserve the evidence and keep the witnesses within the control of the state."

While all this is so, yet, ever since prosecutions for felonies have been permitted by information, it in a way cuts in behind the

cause to believe that accused is guilty of its
commission. Thereafter it is left to the prose
cuting attorney to determine the exact legal
name and nature of the offense committed.
State v. Anderson, 252 Mo. 83, 158 S. W. 817.
The law, then, this view considered, ought
not to be, neither do I think it is, that for
every small error of a magistrate, unlearned
tions must be halted after informations are
in the extreme niceties of the law, prosecu-
filed and the case sent back for a technically
correct preliminary hearing. State v. Jef-
fries, supra; State v. Anderson, supra.
ing a little further in analogy: If defendant
had pleaded guilty of manslaughter, for that,
as the information charged, he had killed one
Olin "Connell," when in fact he had killed
him here upon appeal upon the bare point of
Olin "McConnell," would relief be afforded
misnomer of deceased; the information be-
vote to concur upon the point of waiver
ing otherwise sufficient? I think not. So I

alone.

Go

STATE v. SPARKS. (No. 18342.) (Supreme Court of Missouri, Division No. 2. Feb. 23, 1915.)

1. CRIMINAL LAW 1110- RECORD - CORRECTION OF TRANSCRIPT-PROCEEDINGS. Where accused did not challenge the correctness of the transcript sent up under order gestion of diminution of record and directing of court sustaining the Attorney General's sugthe clerk to transmit a complete copy of all the record entries, he could not on the day on

which the cause was docketed for trial file his motion suggesting diminution of record and praying that the clerk be commanded to send up a complete transcript of all record entries. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2903-2917, 2919; Dec. Dig. 1110.]

2. CRIMINAL LAW 1110- RECORD - CORRECTION OF TRANSCRIPT-PROCEEDINGS,

One suggesting that any record, document, or evidence has been omitted from the transcript or any record entry, document, or evidence has been incorrectly copied into the transcript, ought to file with his motion suggesting diminution true certified copies of the omitted or incorrectly copied entries, documents, or evidence, and, when that is not done, the court will exercise its discretion to grant or overrule the motion as justice and the diligence of the movant demand.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2903-2917, 2919; Dec. Dig. 1110.]

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TRIAL-TIME FOR FILING.

A motion for new trial not filed until one day after sentence and judgment does not present for review any error in the bill of exceptions.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2673, 2676-2684; Dec. Dig.

1063.]

Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.

Asa Sparks was convicted of crime, and he appealed to the Court of Appeals, and it (180 Mo. App. 495, 166 S. W. 642) transferred the cause to the Supreme Court. Affirmed.

Defendant was convicted in the circuit court of Bollinger county on September 10, 1913, of the crime of breaking the custody of an officer, as denounced by section 4382, R. S. 1909, and he appeals from a judgment fixing his punishment at imprisonment for six months in the county jail. This appeal was first granted to the Springfield Court of Appeals, but, as the offense of which defendant was convicted is a felony, the latter court transferred the appeal to this court. State v. Underwood, 254 Mo. 469, 162 S. W.

184.

What purports to be a complete transcript of the record proper and bill of exceptions was lodged with the clerk of this court on Said transcript was so inMay 19, 1914. complete that on June 30, 1914, our Attorney General filed suggestions of diminution of record, which suggestions were by the

court sustained, and the clerk of the circuit 4. CRIMINAL LAW 1144 RECORD-MOTION Court commanded to make out, certify, and FOR NEW TRIAL-FILING-PRESUMPTIONS. Where the record shows that sentence was transmit to this court a full and complete pronounced and judgment entered before mo- copy of all record entries in his office pertion for new trial was filed, it will be presum-taining to this cause. On September 7, 1914, ed, in the absence of a contrary showing, that the clerk complied with our command.

the trial court was informed by accused that he did not desire to be heard on the motion for new trial, and motion for new trial subsequently filed does not present for review any error in the bill of exceptions.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. 1144.]

5. CRIMINAL LAW 1023-RECORD-MOTION FOR NEW TRIAL-FILING-EXCEPTIONS.

Where accused moved for time to file a motion for new trial before entering judgment and the request was denied, the ruling and the evidence on the motion are proper matters of exception.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. 1023.]

6. CRIMINAL LAW 951-RECORD-MOTION FOR NEW TRIAL-FILING-PRESUMPTIONS. Where the clerk writes up judgment against accused before any judgment has been actually pronounced, accused must move to expunge from the records the unauthorized judgment before filing motion for new trial; otherwise judgment will bar consideration of errors found only in the bill of exceptions.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2349-2358; Dec. Dig. 951.]

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The only material difference between the transcript thus obtained and the record entries found in the original transcript is that the one last filed shows that the jury which tried defendant was duly sworn, that defendant was accorded an allocution before sentence, and that the motion for new trial was filed one day after the judgment of conviction had been entered. These important entries were omitted from the original transcript.

J. W. Caldwell and Wm. M. Morgan, both of Marble Hill, for appellant. John T. Barker, Atty. Gen. (S. P. Howell, of Jefferson City, of counsel), for the State.

I. Objections to Record.

BROWN, J. (after stating the facts as above). [1] On January 5, 1915 (the day on which this cause was docketed for trial in this court), the defendant, without challenging the correctness of the transcript sent up under our first order, filed his motion sug. gesting diminution of record and praying that the clerk of the trial court be commanded to send up a full, true, and complete transcript of all record entries in this

cause.

This motion was overruled, and properly so, because we had already done, at the instance of the Attorney General, the very thing the defendant requested us to do.

[2] Without committing ourselves to the proposition that we will not in any crim

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