383 S.W.2d 747 (Mo. 1964), 50268, State v. Collins

Docket Nº:50268.
Citation:383 S.W.2d 747
Party Name:STATE of Missouri, Respondent, v. Jesse Franklin COLLINS, Appellant.
Case Date:October 12, 1964
Court:Supreme Court of Missouri
 
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Page 747

383 S.W.2d 747 (Mo. 1964)

STATE of Missouri, Respondent,

v.

Jesse Franklin COLLINS, Appellant.

No. 50268.

Supreme Court of Missouri.

October 12, 1964

Page 748

Rehearing Denied Nov. 9, 1964.

Page 749

Thomas F. Eagleton, Atty. Gen., Jefferson City, Pendleton Goodall, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.

William H. Webster, Richard J. Sheehan, St. Louis, for appellant.

HYDE, Presiding Judge.

Defendant, charged under the habitual criminal statute (Sec. 556.280), was convicted of illegal sale of a narcotic drug and sentenced to 15 years' imprisonment. Secs. 195.020 and 195.200. Statutory references are to RSMo and V.A.M.S. except as noted. Defendant was represented at the trial by retained counsel of his own choice who filed his motion for new trial, and on this appeal by able appointed counsel.

Defendant makes no contention that the evidence was insufficient to make a submissible case and it was obviously sufficient. Defendant's claims of error are (1) denying his motion to quash the information substituted for the indictment; (2) sentencing under the habitual criminal statute because of failure to prove and failure to find imprisonment under a prior conviction; (3) improperly limiting cross-examination of state's principal witness to the sale; (4) giving Instruction No. 2; (5) permitting testimony of additional criminality of defendant; and (7) failing to instruction on defense of entrapment. Defendant also says (as Assignment 6) we should consider a subsequent murder conviction of the State's principal witness on a plea of guilty. We dispose of this latter contention by saying we cannot consider matters not in the record, occurring after the trial and entirely unrelated to the case against defendant. The case cited by defendant, City of St. Louis v. Vetter, Mo.App., 293 S.W.2d 140, as authority for this contention involved convictions for traffic violations of ordinances that both parties stipulated had been repealed before the date of the offenses charged. Of course, the convictions in that case were invalid but in this case the facts defendant seeks to have us consider would not show his conviction to be invalid but go only to the credibility of a witness and would only be cumulative of other evidence on that issue.

Assignment 1 is based on substitution by the state, for the indictment, of an information alleging defendant's two prior convictions of the offense of illegal possession and sale of a narcotic drug, in 1951, and sentences thereon served concurrently. Defendant argues that the substituted information should be quashed saying Sec. 545.300 authorized substitution when an indictment is held to be insufficient and there was no such ruling herein. Defendant concedes that we have decided this contrary to his contention in State v. Green, Mo.Sup., Div. 2, 305 S.W.2d 863, 868. Defendant says this ruling was based on our Rule 24.02 but claims it is in conflict with State ex rel. Downs v. Kimberlin, Banc, 364 Mo. 215, 260 S.W.2d 552, 555, decided six months after Rule 24.02 became effective. However, the Downs case involved a case in which an indictment was quashed as insufficient and the issue of substitution of an information for other reasons was not involved. Defendant considers Rule 24.02 to be broader than the statute. We do not agree but if it is Rule 24.02 governs since it was adopted under our rule-making authority established by Sec. 5, Art. V, of our

Page 750

Constitution. State ex rel. Bone v. Adams, Mo.Sup., Banc, 365 Mo. 1015, 291 S.W.2d 74...

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