State v. Collins
| Decision Date | 12 October 1964 |
| Docket Number | No. 1,No. 50268,50268,1 |
| Citation | 383 S.W.2d 747 |
| Parties | STATE of Missouri, Respondent, v. Jesse Franklin COLLINS, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, Pendleton Goodall, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
William H. Webster, Richard J. Sheehan, St. Louis, for appellant.
Defendant, charged under the habitual criminal statute (Sec. 556.280), was convicted of illegal sale of a narcotic drug and sentenced to 15 years' imprisonment. Secs. 195.020 and 195.200. Statutory references are to RSMo and V.A.M.S. except as noted. Defendant was represented at the trial by retained counsel of his own choice who filed his motion for new trial, and on this appeal by able appointed counsel.
Defendant makes no contention that the evidence was insufficient to make a submissible case and it was obviously sufficient. Defendant's claims of error are (1) denying his motion to quash the information substituted for the indictment; (2) sentencing under the habitual criminal statute because of failure to prove and failure to find imprisonment under a prior conviction; (3) improperly limiting cross-examination of state's principal witness to the sale; (4) giving Instruction No. 2; (5) permitting testimony of additional criminality of defendant; and (7) failing to instruction on defense of entrapment. Defendant also says (as Assignment 6) we should consider a subsequent murder conviction of the State's principal witness on a plea of guilty. We dispose of this latter contention by saying we cannot consider matters not in the record, occurring after the trial and entirely unrelated to the case against defendant. The case cited by defendant, City of St. Louis v. Vetter, Mo.App., 293 S.W.2d 140, as authority for this contention involved convictions for traffic violations of ordinances that both parties stipulated had been repealed before the date of the offenses charged. Of course, the convictions in that case were invalid but in this case the facts defendant seeks to have us consider would not show his conviction to be invalid but go only to the credibility of a witness and would only be cumulative of other evidence on that issue.
Assignment 1 is based on substitution by the state, for the indictment, of an information alleging defendant's two prior convictions of the offense of illegal possession and sale of a narcotic drug, in 1951, and sentences thereon served concurrently. Defendant argues that the substituted information should be quashed saying Sec. 545.300 authorized substitution when an indictment is held to be insufficient and there was no such ruling herein. Defendant concedes that we have decided this contrary to his contention in State v. Green, Mo.Sup., Div. 2, 305 S.W.2d 863, 868. Defendant says this ruling was based on our Rule 24.02 but claims it is in conflict with State ex rel. Downs v. Kimberlin, Banc, 364 Mo. 215, 260 S.W.2d 552, 555, decided six months after Rule 24.02 became effective. However, the Downs case involved a case in which an indictment was quashed as insufficient and the issue of substitution of an information for other reasons was not involved. Defendant considers Rule 24.02 to be broader than the statute. We do not agree but if it is Rule 24.02 governs since it was adopted under our rule-making authority established by Sec. 5, Art. V, of our Constitution. State ex rel. Bone v. Adams, Mo.Sup., Banc, 365 Mo. 1015, 291 S.W.2d 74, 77. Sec. 477.010, cited by defendant, does not affect the rule-making authority established by Sec. 5, Art. V, Constitution, but was a part of the 1943 Legislative Code, Laws 1943, p. 353, prior to the adoption of the 1945 Constitution. The substituted information only alleged facts making the habitual criminal statute applicable in determining the punishment and this did not charge an offense different from the original indictment, as defendant erroneously claims. State v. Ninemires, Mo.Sup., 306 S.W.2d 527, 530; State v. Miller, Mo.Sup., 202 S.W.2d 887, 890. Only the same signle illegal sale was charged in the substituted information. We hold there was no error in overruling the motion to quash.
Consideration of alleged trial errors 3, 4, 5 and 7 requires the following statement of facts. On the morning of January 7, 1963, Fannie Louise Hall, working with the St. Louis Police Department, made a telephone call from her residence and told defendant she wanted to buy heroin but defendant said he did not have anything. Police officers Schomburg and Schmidt were with her when she called but then lift. About 1:00 P.M. she called defendant again telling him she was sick and needed heroin. Defendant told her to call back later. The officers returned to her home and she made two more calls to defendant. When she made the last call about 3:00 P.M., defendant said he would come there in a cab and bring heroin to her. He did so and was paid by Mrs. Hall for the package he delivered with money furnished to her by the officers, who watched the delivery from inside the house, and who testified to seeing the delivery made and immediately receiving from her the package delivered to her by defendant. The package, containing four capsules, was then taken by the officers to a police chemist, who made an analysis of them. He testified that the capsules contained a narcotic known as heroin.
Defendant claims (Assignment 3) improper limitation of his cross-examination of Mrs. Hall for the purpose of impeaching her credibility by erroneously approving the physician-patient privilege and the privilege against self-incrimination. By cross-examination, it was shown that Mrs. Hall had been a narcotics addict (the state showed on direct examination that she had been convicted of addiction and stealing by deceit); that she got out of the Malcolm Bliss Hospital (a mental hospital) on Tuesday before the trial and had been there eight or nine days; and that she had a drug cure in 1959 but could use drugs occasionally. She was not required to answer whether she did take occasional drugs because the court considered it might incriminate her. Although Sec. 195.020 and 195.200 did make drug addiction a criminal offense, as defendant points out, we held that provision unconstitutional in State v. Bridges, Mo.Sup., 361 S.W.2d 648. However, defendant's counsel was permitted to recall Mrs. Hall and obtain testimony from her that on the previous day, she had used a narcotic drug known as amphetamine; that at that time she had taken it by mouth but most of the time previously she injected it in a vein and was using about two injections a day. She also said she drank some whiskey the night before and had a small amount of gin that morning. Defendant cites State v. Brotherton, Mo.Sup., 266 S.W.2d 712, 714, in which we said: "When a witness is cross-examined he may, in addition to the questions hereinbefore referred to (concerning commission of a crime), be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character." We further said therein: 'The better doctrine would seem to be that while such questions may be asked the witness on cross-examination it is a matter largely within the discretion of the court before whom the case is to be tried.' The cross-examination was proper but in view of the reopening of the matter of use of drugs and the further testimony defendant was permitted to bring out on this issue, we find no abuse of discretion by the court as to cross-examination concerning use of drugs by this witness. We have the same view concerning defendant's further complaints relating to Mrs. Hall's discussion of her testimony with police officers and her relationship with Eugene Hill, with whom she was living, and other collateral matters.
Concerning the reference to Mrs. Hall being in the Malcolm Bliss Hospital, the State's objection to defendant's counsel's question concerning it actually was overruled as shown by the following proceedings after the physician-patient privilege was discussed:
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