State v. Chambers, KCD

• Decision Date: 04 April 1977
• Docket Number: No. KCD,KCD
• Citation: 550 S.W.2d 846
• Parties: STATE of Missouri, Respondent, v. James Wilson CHAMBERS, Appellant. 28083.
• Court: Missouri Court of Appeals

Page 846

550 S.W.2d 846

STATE of Missouri, Respondent, v.James Wilson CHAMBERS, Appellant.

No. KCD 28083.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

Motion for Rehearing and/or Transfer Denied May 2, 1977.

Application to Transfer Denied June 14, 1977.

Melvin G. Franke, Public Defender, Union, for appellant; Prudence L. Fink, Union, of counsel.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.

SOMERVILLE, Judge.

Defendant was charged under the Second Offender Act with assault with intent to kill with malice aforethought (§ 559.180, RSMo 1969).He was found guilty by a jury as charged and the court, after making the requisite findings relative to the Second Offender Act, fixed his punishment at fifteen years confinement in the Department of Corrections.

Defendant duly appealed and in pressing this court for relief charges three instances of alleged error.First, due to an allegedly improper arraignment, the trial court lacked jurisdiction to try the case.Second, the trial court erred in admitting State's Exhibit 2 (three spent cartridges) and State's Exhibit 3 (a "nickel plated" .32 caliber revolver) because they"were not connected up with the crime or the defendant".Third, the trial court erred in permitting a state's witness to testify as to a statement made to him by defendant after the assault as the prosecuting attorney allegedly failed to disclose the same to defense counsel when discovery was requested.

Defendant has not challenged the sufficiency of the evidence to support the guilty verdict and a fairly terse recital of the evidence demonstrates why he has not done so.About half past midnight on January 1, 1974, a melee occurred in front of the V.F.W. Hall located approximately one-half mile north of Antonio, Missouri, while a public dance was in progress.Roger Griffin, the victim, who was attending the dance, left the hall and went outside to see what was going on.As he approached the melee he suggested that, "everybody go inside and listen to the band".Whereupon, the defendant grabbed him around the neck, placed a revolver in his stomach, and shot him twice.As the victim staggered backwards, defendant shot him a third time in the stomach.The victim, obviously a person of hardy stock, survived.

Defendant's contention that the trial court lacked jurisdiction to try the case centers around his arraignment.The offense, which occurred in Jefferson County, was tried in Morgan County on change of venue.During the interim, a change of prosecuting attorneys occurred in Jefferson County.Defendant was never arraigned until after an amended information was filed in Morgan County by the succedent Prosecuting Attorney of Jefferson County.For some unexplained reason, upon arraignment in Morgan County, defendant was read the information filed by the former Prosecuting Attorney of Jefferson County.The amended information upon which defendant was tried and convicted, and the preceding information which was read to him when he was arraigned, were identical save for their dates of verification and the names of the subscribing prosecuting attorneys.Defendant does not claim that the amended information was insufficient or wanting in any respect to properly charge him with the offense for which he was tried and convicted, or that he failed to receive a copy of it.His argument, highly convoluted in nature, takes the following tack: the information read to him on arraignment had been suspended by the filing of the amended information (Rule 24.14andState v. Berry, 298 S.W.2d 429, 432(Mo.1957)) and therefore no jurisdiction attached in the trial court to try him.

It is true that there can be no trial, conviction, or punishment absent a formal charge, i.e., an indictment or information.State v. Harrison, 276 S.W.2d 222, 223-24(Mo.1955)cert. denied349 U.S. 948, 75 S.Ct. 877, 99 L.Ed. 1273(1955);andState v. Granberry, 530 S.W.2d 714, 719(Mo.App.1975).The complete absence of a formal charge is jurisdictional and cannot be waived.State v. McQueen, 282 S.W.2d 539, 540(Mo.1955).An information on file charging a defendant with an offense to which he pleads is a jurisdictional prerequisite.State v. Gladies, 456 S.W.2d 23, 24(Mo.1970).These principles, however, in the context of defendant's first point, must be juxtaposed with the purpose and manner of conducting arraignments.The purpose of an arraignment is explicated in State v. Borchert, 312 Mo. 447, 279 S.W. 72, 75(1925): "The evident purpose of an arraignment . . . is to ascertain whether defendant is personally before the court, in order that he may know what is being done in his case, and to give him an opportunity to plead guilty, if he elects to do so, or to enter a plea of not guilty."The manner of conducting an arraignment is prescribed by Rule 25.04 which provides, in part, that "(a)rraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating to him the substance of the charge and calling on him to plead thereto. . . ."(Emphasis added.)When the above principles are superimposed on the record in this case, the inherent fallibility of defendant's first point is readily apparent.The language describing the offense in the information read to defendant on arraignment was repeated verbatim in the amended information, which was on file.Thus in every sense, the amended information, which was on file and upon which defendant proceeded to trial and was found guilty, charged defendant with the precise offense to which he pled not guilty.Every "evident purpose" was served by defendant's arraignment and the manner in which it was conducted complied with Rule 25.04, supra, as the obviously inadvertent reading of the earlier information, to say the least, stated the "substance of the charge" pending against him.Defendant's first point, ingenious though it may be, is totally lacking in substance, as the amended information on file charged him with the precise offense to which he pled not guilty and for which he was tried and found guilty.

Defendant, by way of his second point, charges the trial court with error in admitting into evidence State's Exhibit 2 (three spent cartridges) and State's Exhibit 3 (a "nickel plated" .32 caliber revolver).The gravamen of this point, according to defendant's brief, is that said exhibits "were not connected up with the crime or the defendant".Regarding State's Exhibit 3, the .32 caliber revolver, the state's evidence disclosed the following.A witness for the state testified that he was checking persons as they entered the dance hall to see if they were carrying a weapon; on checking defendanthe saw and observed a "gun" which defendant was carrying; and he identified State's Exhibit 3 as the "gun" which defendant was carrying when he checked him as he entered the dance hall.The victim testified that when he was shot by the defendant, he saw a "shiny gun"; State's Exhibit 3 was displayed to him and upon being asked if it "appeared" to be "the same kind of a weapon", he replied, "Yes sir".Another witness for the state testified that he observed defendant shoot the victim and as the latter staggered backwards and was shot the third time he saw a "chrome plated .32 revolver" in defendant's hand; State's Exhibit 3 was displayed to him and upon being asked "if it was similar to the weapon you saw there that night", he replied, "Yes, sir"; and he...