Boothe v. State
| Decision Date | 09 February 1976 |
| Docket Number | No. KCD27736,KCD27736 |
| Citation | 534 S.W.2d 74 |
| Parties | Raymond J. BOOTHE, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Lawrence F. Gepford, Jeffery L. Alena, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Beofre SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.
This appeal is from a denial of a motion to vacate judgment and sentence under Rule 27.26. The defendant was accused by separate indictments with two acts of first degree murder. The indictments were in conventional form and clearly sufficient. On the motion of the defendant the two causes were consolidated for trial, but over his objection the indictments were amended by the phrases: 'or during the commission of a burglary' and 'either alone or knowingly acting in concert with others.' The jury assessed the death penalty on each charge; on appeal the convictions were affirmed and the sentences commuted to life imprisonment. State v. Boothe, 485 S.W.2d 11 (Mo. banc 1972).
The post-conviction motion asserted five separate grounds for relief, each denied by the trial court after evidentiary hearing. On this appeal all have been abandoned except for the contention that the amendments to the indictments rendered them unlawful, deprived the trial court of jurisdiction of the causes and invalidated the convictions. The precise contention is that the terms added to the indictments altered the offenses from first degree murder to felony-murder, thus enabled the State to establish guilt by a reduced quantum of evidence, and resulted in substantial amendment without authority of statute or rule.
As a general principle of law, in the absence of a statute or rule which enables, the court may not make or permit amendment of an indictment. State v. Holbert, 399 S.W.2d 142, 144(3). The reason, of ancient origin, is that indictments (contradistinct from informations) are found upon the oath of a jury and ought be amended only by them. Rex v. Wilkes, 4 Burr 2527, 2569, 98 Eng.Rep.Reprint 351 (1770). It was in reliance on this principle that Holbert held that, although a prosecutor could properly substitute an information for an indictment under Rule 24.02, he could not correct a fatally defective indictment merely by the addition of an essential element originally lacking.
Our decisions, however, do not regard an indictment as altogether inviolable after return by the grand jury, but in the manner authorized by the criminal statute of jeofails (§ 545.030 RSMo 1969) allow amendment of form which does not prejudice the substantial rights of the accused. Hayes v. State, 501 S.W.2d 508, 510(3, 4) (Mo.App.1973); State v. Hoyt, 324 Mo. 837, 24 S.W.2d 981 (1929). Hayes affirmed a plea of guilty under an indictment for first degree murder from which deliberately had been deleted. Against the contention that the amendment worked a qualitatively different charge, the court determined that murder second degree as an included offense of murder first degree could have been proved under the...
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Boothe v. Wyrick, 77-0830-CV-W-4.
...under Missouri Rule 27.26. The Circuit Court denied the motion after a hearing, and its decision was affirmed on appeal. Boothe v. State, 534 S.W.2d 74 (Mo.App.1976). This action On direct appeal, the Missouri Supreme Court set forth the facts underlying this case. During the evening of Jan......
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State v. Ellis
...supra. Amendments have also been approved which had the effect of alleging a lesser included offense in the indictment. Boothe v. State, 534 S.W.2d 74 (Mo.App.1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 819, 50 L.Ed.2d 796 (1977); Hayes v. State, 501 S.W.2d 508 (Mo.App.1973). However, this......
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State v. Johnson, 43192
...in the absence of a statute or rule which so provides, the court may not make or permit the amendment of an indictment. Boothe v. State, 534 S.W.2d 74 (Mo.App.1976) (1). In this state the statute of jeofails, Sec. 545.030, RSMo 1978, has been construed as authorizing amendments with respect......
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Winningham v. State, 12658
...degree felony murder. Therefore, the defendant was not prejudiced by the amendment and therefore it was proper. Compare Boothe v. State, 534 S.W.2d 74 (Mo.App.1976) and State v. Warfield, supra. Under these authorities, the state's position is Of course, this court must consider State v. Ba......