State v. Couch, KCD
| Decision Date | 05 May 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 523 S.W.2d 612 |
| Parties | STATE of Missouri, Respondent, v. Dwight Eugene COUCH, Appellant. 26878. |
| Court | Missouri Court of Appeals |
James L. McMullin, Hill, McMullin & Wilson, Kansas City, John J. Cosgrove, Kansas City, of counsel, of appellant.
John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
Before SWOFFORD, P.J. and WELBORN and HIGGINS, Special Judges.
The appellant (hereinafter called 'defendant') was tried on an amended information charging him with assault with intent to rape with malice, and was convicted. The jury was unable to agree upon a sentence and the trial court sentenced him to 25 years in the penitentiary. His motion for a new trial was thereafter overruled and this appeal followed.
The defendant's pro se brief raised a point not theretofore urged and which is dispositive of this appeal. He asserts therein, as error, the fact that the trial court permitted the state to file at the beginning of the trial an amended information wherein the original charge of assault with intent to rape without malice was amended to charge assault with intent to rape with malice, which he asserts charges a new and different offense carrying a greater penalty. It should be here noted that the amendment by the state was made without objection (and indeed, with the consent of the defendant and his counsel); defendant signed a written waiver of preliminary hearing on the amended information; and no allegation of such error was asserted during the trial nor in the motion for a new trial. Nevertheless, since the point now made is an attack upon the sufficiency of the information upon which the defendant was tried and convicted (and indeed, therefore, an attack upon the jurisdiction of the trial court) the same must be considered upon this appeal. Criminal Rule 28.02, V.A.M.R., provides in pertinent part:
'* * * Allegations of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence shall be considered upon an appeal although not raised in the trial court or preserved for review. * * *'
The statutory sections of the criminal code here involved are Sections 559.180 and 559.190 RSMo 1969, V.A.M.S. Section 559.180 in pertinent part provides:
Section 559.190 in pertinent part provides:
It has been held that the basic distinction between the offenses covered by these sections is the existence of malice, which brings the charge within Section 559.180 RSMo 1969, V.A.M.S., the greater offense which carries a maximum penalty of life in the penitentiary. For an information to fall within the mold of this section, it must allege an assault upon a specified person, the existence of malice, the means used and the intent. State v. Gillespie, 336 S.W.2d 677, 680(3) (Mo.1960); State v. Lane, 371 S.W.2d 261, 264(4) (Mo.1963).
Section 559.190 RSMo 1969, V.A.M.S., is intended to cover a less aggravated assault than Section 559.180 RSMo 1969, V.A.M.S., and carries a maximum penalty of five years in the penitentiary. State v. Hagerman, 244 S.W.2d 49, 51(1) (Mo.1951).
'The two offenses proscribed by §§ 559.180 and 555.190 are distinct and different, both in degree and in severity and range of punishment.' State v. Gladies, 456 S.W.2d 23, 25(3) (Mo.1970).
While certain amendments to information as to form or substance may be permitted, it has long been held that such amendments are not permissible if the effect thereof is to charge an offense different from that charged in the original information. Cr. Rule 24.02; State v. Thompson, 392 S.W.2d 617, 620(1, 2) () (Mo.1965); State v. Gladies, supra, at l.c. 25.
The amended information upon which the defendant was tried in pertinent part charged as follows:
'Amended Information Assault with Intent to Rape With Malice
Now comes James F. Speck Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the Court, that Dwight Eugene Couch, * * * on the 15th day of July, 1972, at the County of Jackson, State of Missouri, did then and there unlawfully feloniously and of his malice aforethought make an assault, forcible and against her will upon one * * * with the felonious intent the said * * * to ravish and carnally know; against the peace and dignity of the State.' (Emphasis supplied)
This amended information is indentical to the original information except for the name of the charging officer and the addition of the words italicized 'and of his malice aforethought'. The amendment was intended by the state to charge an offense under Section 559.180 and thus attempted to charge a greater offense, distinct and different from the charge originally lodged under Section 559.190. 1 The state, counsel for defendant, and the court proceeded through the trial, verdict, judgment, allocution and sentencing (for five times the maximum penalty provided in Section 559.190) upon this assumption. It is clear, however, that such alteration of the charge by amendment fell squarely within the proscription of Rule 24.02 and the cases cited supra, and the proceedings were therefore a nullity.
There is a further reason why the amended information is fatally defective. Even if such an amendment were permissible, the information upon which defendant was tried did not properly charge an offense under Section 559.180. An essential element of a charge under that section (in addition to malice aforethought) is the 'use of means or force likely to produce death or great bodily harm'. State...
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State v. Clements
...potential for crime, that he 'undoubtedly' will commit similar crimes in the future 'if unrestrained.' " See also State v. Couch, 523 S.W.2d 612, 615-616 (Mo.App.1975). This court holds that plain error, within the meaning of Rule 30.20, was committed in admitting the foregoing portions of ......
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State v. Wilkerson
...an offense with which he was not effectually charged, as was true in Montgomery v. State, 454 S.W.2d 571 (Mo.1970), and State v. Couch, 523 S.W.2d 612 (Mo.App.1975). The confused record before us makes it appear that the amendment represented an attempt to charge correctly and sufficiently ......
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State v. Moore
...error, but rather, it is undertaken pursuant to the prior interpretation of this court pertaining to Rule 30.20 in State v. Couch, 523 S.W.2d 612, 614 (Mo.App.1975). Appellant was convicted by jury and the jury assessed punishment at twelve years confinement. Following trial, the court ente......
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State ex rel. Thomas v. Crouch
...of no probable cause for a specific felony. The following two cases, State v. Gladies, 456 S.W.2d 23 (Mo.1970), and State v. Couch, 523 S.W.2d 612 (Mo.App.1975), bear significantly on the issue in the instant case and will be so understood if it is borne in mind that the original informatio......