State v. Colbart

• Decision Date: 13 February 1967
• Docket Number: No. 1,No. 51920,51920,1
• Citation: 411 S.W.2d 92
• Parties: STATE of Missouri, Respondent, v. Rickey Leroy COLBART, Appellant
• Court: Missouri Supreme Court

Page 92

411 S.W.2d 92

STATE of Missouri, Respondent, v. Rickey Leroy COLBART, Appellant.

No. 51920.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Burton H. Shostak, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Kenneth H. Reid, Donald E. Bonacker, Springfield, for defendant-appellant, Rickey Leroy Colbart.

HIGGINS, Commissioner.

Appellant was convicted by a jury of robbery in the first degree, a felony. Section 560.120, V.A.M.S. Pursuant to such verdict and upon a finding of prior conviction, the court assessed appellant's punishment at thirty-five years' imprisonment in the penitentiary and sentenced him accordingly. Sections 556.280 and 560.135, V.A.M.S.

Appellant does not question the sufficiency of the evidence inasmuch as his points 'pertain solely to the various informations filed in the trial court.' The case was tried December 2, 1965, on a second amended information filed November 24, 1965, which charged Rickey Leroy Colbart and one Willie B. Brown with prior felony convictions and that on August 18, 1965, in Greene County, Missouri, they 'did then and there wilfully, unlawfully and feloniously make an assault in and upon one Callie Anderson * * *, with their * * * hands and fists on and about the head and body of the said Callie Anderson and (they) * * * did then and there in the presence and against the will of the said Callie Anderson, by violence to her person, feloniously rob, steal, take and carry away, with intent then and there to permanently deprive Callie Anderson * * * of the use thereof, good and lawful money of the United States of America, of some value, the property of Callie Anderson * * * Contrary, etc., * * *.'

Separate trials were accorded the accused, and the testimony of Mrs. Anderson alone was sufficient to warrant a conviction of appellant of robbery first degree as charged in the second amended information. She stated that she operated a small grocery store at 802 North Campbell, Springfield, Missouri; that on August 18, 1965, two Negroes, one being identified by her in the courtroom as the appellant, came into her store at about 2:30 p.m.; that appellant threw her to the floor 'and he beat me--he throwed me on this side * * * and I still hurt right there, and here's where they hit me (indicating) and I can't lift as much as a pound of water. * * * He beat me and here's a place right there and there was three places there (indicating over right eyebrow) where the blood was just a-streaming and I didn't know it.' They then got into the cash register and appellant 'come back to me. He said, 'If you scream,' he says, 'I'm goin' to kill you.' * * * And he grabbed his hands around my neck * * *.' They took her money from the cash register consisting of 'about ten dollars in small change, pennies, nickels, dimes and quarters. I wouldn't say whether there was any half dollars or not, and the other was in ones; about 6 or 8 dollars at the least. * * * I was still layin' there and they went out and these boys come in and they picked me up and put me in my chair * * *.'

Appellant concedes that the second amended information was sufficient in form and substance to charge robbery in first degree under the statute, but he advances several propositions whereby he says it 'cannot be considered.'

He contends that the second amended information materially changed the charge against him in that the original and (first) amended informations charged him 'only with common assault and then with some type of taking or robbery' and that neither apprised the accused that the state intended to charge him with robbery in the first degree of the complaining witness 'by violence to her person'; that 'by violence to her person' was added 'secretively' to the second amended information to perfect the charge and without leave of court and notice to the defendant or opportunity to be heard; that he did not know of and was not arraigned on the second amended information; that he did not know of a charge of robbery in first degree against him because the original and (first) amended informations did not contain every ingredient and element essential to that crime.

It is, of course, necessary to allege all the elements of the crime intended to be charged. Criminal Rule 24.01, V.A.M.R., State v. Cunningham, Mo., 380 S.W.2d 401, 403(4); State v. Thierauf, 167 Mo. 429, 67 S.W. 292, 295. Otherwise, an accused's constitutional right to be informed as to the nature of the crime attributed to him is violated. State v. Schultz, Mo., 295 S.W. 535, 536(2); State v. Elgin, Mo., 391 S.W.2d 341, 343(3); State v. Fenner, Mo., 358 S.W.2d 867, 870(5); State v. Ballard, Mo., 394 S.W.2d 336, 342(11). And if such elements are missing, they cannot to supplied by intendment or implication. State v. Harris, Mo., 313 S.W.2d 664, 669(2); State v. Cantrell, Mo., 403 S.W.2d 647, 650(7--11). Nor may a distinctly different offense be charged by an amended information. State v. Thompson, Mo., 392 S.W.2d 617, 620(1).

The record in this case refutes appellant's complaints and shows that the charge upon which he was convicted conforms to the foregoing requirements. The original information, filed August 20, 1965, charged that on August 18, 1965, in Greene County, Missouri, Rickey Leroy Colbart and Willie B. Brown 'did then and there wilfully, unlawfully and feloniously make an assault in and upon one Callie Anderson * * * with their * * * hands and fists on and about the head and body of the said Callie Anderson, and (they) did then and there in the presence and against the will of the said Callie Anderson, feloniously rob, steal, take and carry away, with intent then and there to permanently deprive Callie Anderson * * * of the use thereof, good and lawful money of the United States of America, of some value, the property of Callie Anderson * * * contrary, etc. * * *.' On that date appellant was present in Division II of the Greene County Circuit Court and Mr. Don Bonacker was appointed to defend him. On September 28, 1965, appellant petitioned for and secured a change of judge whereby his case was transferred to Division I of the Greene County Circuit Court. On October 7, 1965, appellant was present in court with his attorney and was arraigned upon the original information to which he pleaded not guilty. The original information was amended October 20, 1965, to charge appellant and his codefendant as second offenders and, on November 24, 1965, a second amended information was filed which followed the original and (first) amended informations and added 'by violence to her person' between the allegations of means and manner of felonious assault and the allegation of felonious robbery. On December 2, 1965, appellant was present in open cour...