97 S.W. 574 (Mo. 1906), The State v. Coleman

Citation:97 S.W. 574, 199 Mo. 112
Opinion Judge:FOX, J.
Party Name:THE STATE v. COLEMAN, Appellant
Attorney:Johnson & Johnson and Ball & Sparrow for appellant. Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
Case Date:November 20, 1906
Court:Supreme Court of Missouri
 
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Page 574

97 S.W. 574 (Mo. 1906)

199 Mo. 112

THE STATE

v.

COLEMAN, Appellant

Supreme Court of Missouri, Division Two

November 20, 1906

Appeal from Chariton Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed.

Johnson & Johnson and Ball & Sparrow for appellant.

(1) The court erred in refusing to quash the amended information for the reason that the original information only charged manslaughter and could not be so amended as to charge murder. (2) Court erred in permitting J. A. Collet, assistant hired counsel, to close the argument for the State over the objection and protest of the defendant. (3) To overrule defendant's application for a continuance on the ground that the evidence of a witness in the former trial of the case which defendant desired to impeach had been preserved in the bill of exceptions and could be read by the defendant on the trial of the case then pending, and then refuse to allow such testimony to be read when offered by defendant, was to trap the defendant into answering ready for trial, and place him at the mercy of a hostile witness called by the State.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) The ruling of the court on a motion to quash is a matter of exception, and unless made a part of the record by bill of exceptions, will not be reviewed by this court. State v. Finley, 193 Mo. 210. (2) An information or affidavit may be amended in matter of form or substance at any time by leave of court before trial, and the filing of an amended information and affidavit in this case to cure the defect in the original was in effect authorized by the decision of this court on the former appeal. Sec. 2481, R. S. 1899; State v. Coleman, 186 Mo. 166; State v. Broeder, 90 Mo.App. 167; State v. Vinso, 171 Mo. 576; State v. Emerson, 188 Mo. 412. (3) The court did not err in overruling the defendant's application for a continuance. The application was based upon the absence of two witnesses for the defendant, namely, Miss Quinn Shannon, the stenographer on the former trial of this case, and Wallace Fletcher. The evidence of the former, as stated in the application, could be material only for the purpose of impeaching Henry Gottschalk, Sr., a witness for the State on the first trial. Fletcher had testified on behalf of the defendant at the first trial, and the evidence of both Gottschalk and Fletcher on the former trial was preserved by bill of exceptions. Under the statute, such evidence could be used by the defendant "in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause." The presence of the stenographer, therefore, was not necessary for the purpose of impeaching Gottschalk. Section 3149, R. S. 1899. This section authorizes the reading of evidence so preserved by bill of exceptions in the same manner and with like effect, etc., as in the case of a deposition. As witness Gottschalk, whose testimony on the former trial the defendant offered to read, was present in the court room at the time of such offer, his former testimony so preserved was not admissible. Sec. 2904, R. S. 1899; Schmitz v. Railroad, 119 Mo. 271. (4) The court did not err in permitting J. A. Collet, counsel assisting in the prosecution, to make the closing argument to the jury over the defendant's objection. State v. Stark, 72 Mo. 37; State v. Robb, 90 Mo. 30.

OPINION

Page 575

[199 Mo. 114] FOX, J.

This cause is here upon appeal from a judgment of the circuit court of Chariton county convicting the defendant of murder of the second degree. This case was in this court on a former appeal, and is reported in 186 Mo. at page 151. On that appeal it was held by this court that the information on which the defendant was tried and convicted was defective, in that in the concluding part thereof the prosecuting attorney omitted to use the words "upon his oath," which were held essential in charging the crime of murder in the [199 Mo. 115] first degree. The case was then reversed and remanded for a new trial.

After the reversal and remanding of said cause to the circuit court...

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