State v. Boone, 39987.

• Decision Date: 14 October 1946
• Docket Number: No. 39987.,39987.
• Parties: STATE v. CLAUDE BOONE, Appellant.
• Court: Missouri Supreme Court

196 S.W.2d 794 STATE
v.
CLAUDE BOONE, Appellant. No. 39987. Supreme Court of Missouri. Division One, October 14, 1946.

Appeal from Adair Circuit Court. — Hon. Edward M. Jayne, Judge.

AFFIRMED.

Alex Nimmo for appellant.

(1) It was error to permit an amendment of the information which amounted to a new cause of action under a different section. (2) After the information was amended defendant should have had additional time to plead. State v. Boggs, 49 S.W. (2d) 269. (3) Endorsement of additional witnesses on the amended information should not have been permitted without adequate notice to defendant. State v. Whitsett, 232 Mo. 511. (4) Prejudice was created by keeping defendant in handcuffs before the jury. (5) The jury should not have been permitted to separate during the trial. Sec. 4071, R.S. 1939.

J.E. Taylor, Attorney General, and J. Martin Anderson, Assistant Attorney General, for respondent.

(1) The court did not err in overruling the objection of the appellant to the amending of the information. Secs. 3807, 3898, R.S. 1939; State v. Smith, 306 Mo. 451, 267 S.W. 869; State v. Fox, 300 S.W. 820; State v. Quinn, 345 Mo. 855, 136 S.W. (2d) 985; State v. Coleman, 199 Mo. 112, 97 S.W. 574. (2) The court did not err in overruling the objection of the appellant to the endorsement of the witnesses Eunice Boone, Lula Barger, Mrs. Frank Collins, Mildred Snyder and Martha Estell. Secs. 3894, 3933, R.S. 1939; State v. Derrington, 137 S.W. (2d) 468; State v. Stanfield, 1 S.W. (2d) 834; State v. Hampton, 172 S.W. (2d) 1. (3) The court did not err in refusing to dismiss the jury and in continuing the case when the appellant's counsel objected because the appellant was allowed to remain in handcuffs prior to the time the trial proper commenced. State v. Rice, 347 Mo. 812, 149 S.W. (2d) 347; State v. Kring, 1 Mo. App. 438; State v. Kring, 64 Mo. 591; State v. Craft, 164 Mo. 631, 65 S.W. 280; State v. Rudolph, 187 Mo. 67, 85 S.W. 584; State v. Temple, 194 Mo. 228, 92 S.W. 494; State v. McKeever, 339 Mo. 1066. (4) The court did not err in permitting the jury to separate at the end of the first day of the trial and at the adjournment of the court until the following morning. Sec. 4071, R.S. 1939; State v. Schaeffer, 172 Mo. 335, 72 S.W. 518; State v. King, 342 Mo. 1067, 119 S.W. (2d) 322; State v. Dougherty, 55 Mo. 69; State v. Hatcher, 303 Mo. 13, 259 S.W. 467; State v. Murray, 126 Mo. 611, 29 S.W. 700; State v. Avery, 113 Mo. 475, 21 S.W. 193; State v. McGee, 336 Mo. 1082, 83 S.W. (2d) 98; State v. Westmoreland, 126 S.W. (2d) 202; State v. Lemon, 263 S.W. 186; State v. Mix, 15 Mo. 153; State v. Frier, 118 Mo. 648, 24 S.W. 220; State v. Spencer, 195 S.W. (2d) 99.

BRADLEY, C.

Defendant was charged with forcible rape; verdict of guilty; punishment assessed by the jury at 50 years and one day in the penitentiary. Motion for a new trial was overruled; allocution and sentence followed and defendant appealed.

The prosecuting witness was Mary Mae Maggart, daughter of defendant. She had been married, but was divorced. Defendant and the mother of Mary Mae were also divorced. All the parties resided in Kirksville, Missouri. Mary Mae lived with her mother and defendant had a room over a drug store. About 4 P.M., October 22, 1945, defendant sent word to his daughter that he wanted to see her. She went to his room; he was drinking and according to Mary Mae's evidence he forcibly ravished her. The sufficiency of the evidence is not challenged, hence it will not be necessary to say more of the evidence.

Error is assigned: (1) On permitting the information to be amended, and on refusing a continuance after the amendment; (2) on permitting the names of certain witnesses to be endorsed on the information; (3) on the refusal to dismiss the jury and

196 S.W.2d 795

continue the case because defendant was allowed to remain handcuffed "all forenoon of the first day of the trial" in the presence of the jury; and (4) on permitting the jury to separate.

[1] The information charged forcible rape under Sec. 4393, R.S. 1939, Mo. R.S.A., Sec. 4393, and also charged under the habitual criminal act, Sec. 4854, R.S. 1939, Mo. R.S.A., Sec. 4854. The amendment struck out the charge under the habitual criminal act. In the brief defendant says: "The objection is made because the original information was filed under section 4854, and the information as amended charges the defendant under section 4393, which in reality makes it a new cause in that it may carry a heavier penalty, and the objection is made because the defendant was not notified of the proposed amendment." The information was not filed under Sec. 4854, but charged rape under Sec. 4393, and also alleged such facts as to make defendant liable to additional punishment under the habitual criminal act if convicted of rape.

[2] The trial court refused the continuance after the amendment on the theory that defendant was "in no wise hurt by the change." Prior to the amendment the information charged that defendant had previously been convicted and served respective terms in the penitentiary for assault with intent to rape and for burglary. The habitual criminal...