
    The State v. Burr, Appellant.
    
    1. Pleading, Criminal: information. An information -which charges an offense in the language of the statute creating it, is sufficient.
    2. Practice, Criminal: instructions. The giving of an instruction authorizing a greater punishment than allowed by law, will not constitute reversible error where the jury assess the minimum punishment allowed by law.
    
      Appeal from Barton Circuit Court.—IIon. J. D. Parkinson, Judge.
    Affirmed.
    
      Morgan Buter for appellant.
    The information states no cause of action. It does not allege that defendant entered the inclosure without leave of the owner thereof, and that is the very essence of the offense. The terms willfully and maliciously used in the information, apply to a different clause and different offense, and cannot be construed to supply by implication the allegation left out of this information. Moreover, watermelons are not included in the act. The various kinds of plants, bushes and. vines intended to be protected, are specifically mentioned, and watermelons are not named. The rule is, where general words follow particular ones, to construe the former as applicable to the things or persons particularly mentioned. St. Louis v. Laughlin, 49 Mo. 559. The only instruction given by the court is erroneous. It was calculated to prejudice the jury by leading them to believe that the ofíense was of so serious a nature that on conviction it might be punishable by imprisonment in the county jail for one year, whereas, under the then existing law, three months was the maximum. Wag. Stat., p. 464, § 65.
    
      L. H. McIntyre, Attorney General, for the State.
    The information charged the offense in the language of the statute (Wag. Stat., p. 464, § 65), creating it, and is sufficient. It was exhibited by the prosecuting attorney, who was the proper officer. Laws 1877, p. 355, § 6. And the justice had jurisdiction. Laws 1877, p. 281, § 1. The instruction given erroneously declared the penalty affixed to the commission of the offense, but inasmuch as the jury assessed a fine of $5, the very minimum prescribed by the law in force when the ofíense was committed, it is clearly not an error of which defendant can be heard to complain.
   Ewing, 0.

This was a proceeding by information, before a justice of the peace, under section 65, 1 Wagner’s Statutes, p. 464. The information charges that the defendant did willfully, maliciously, and unlawfully enter the inclosure of R. I). Chappell, without leave so to do, and did then and there pick, pull off, destroy and carry away a large lot of watermelons, the fruit of certain cultivated vines. A fine of five dollars was assessed against the defendant by a jury in the justice’s court; and again on a new trial in the circuit court, a jury found him guilty, and assessed his punishment at a similar fine,

I. At the ti'ial in the circuit court, defendant objected to the introduction of any evidence, on the ground that the information did not state facts sufficient to show that any offense had been committed. Upon this question, it is sufficient to say, that the information followed the language of the statute in describixxg the offense, which is all that ia necessary. State v. James, 63 Mo. 570.

II. The defendaxxt objected to the following instruction, which was asked by the State and givexx, to-wit:

“ If they believe from the evidence, that defendant, at the county of Barton, and State of Missouri, did willfully, maliciously, and without leave, exxtex* the enclosure of R. D., Chappel, on or about the 24th day of July, 1879, axid did then and there pick, pull off or destroy, or caxu-y away any watermeloxxs, the fruit of cex-taiix cultivated watermelon vines, then they shall find the defendant guilty, and assess his punishmexxt at a fine of not exceeding $5, or by imprisonment in the couixty jail, not exceeding one year, or by both such fine and ixnpxúsonment.

The jury found the defexidant guilty, and assessed his punishment at a fine of $5.

Under the act creatixxg the offense, it was punishable “by fine not less than $5 nor mox*e than $50, or by imprisonment in the jail of the county not exceeding three months, or both such fine and impx’isonment, and shall, moreover, be liable in- double the amount of damages to the party injured.

This instruction was undoubtedly erroxxeous. It told the jury that if guilty, the defendaxxt was liable to imprisonment not exceeding oxxe year, whereas he was only subj ect to imprisonment, not exceeding three months. S uch an instruction might prejudice the rights of a defendant. The jury might be led into assessing a greater punishment, where the range was as great as from one day to one year, than where it was from one day to three months; and hence such an instruction is erroneous. In this case, howevei', the minimum puixishment fixed by statute, is a fine of $5. Tbe jury assessed tbe fine at that sum, and tbe defendant was not injured, or in any way affected by tbe erroneous instruction. Tbe error, therefore, did not “ materially affect tbe merits ” of tbe case. § 3,775, R. S. 1879; Otto v. Bent, 48 Mo. 23.

Tbe evidence was conclusive, tbe information was formal and sufficient, and for these reasons, tbe judgment is affirmed.

All concur.  