State v. Courtney

• Citation: 202 S.W.2d 72,356 Mo. 531
• Decision Date: 12 May 1947
• Docket Number: 40218
• Parties: State v. Ernest Courtney, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 72

356 Mo. 531

State v. Ernest Courtney, Appellant

No. 40218

Supreme Court of Missouri

May 12, 1947

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed.

Shepard R. Evans and I. Joel Wilson for appellant.

J E. Taylor, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

(1) The information insufficient and fully apprises the defendant of the crime charged. The court committed no error in allowing the prosecution to substitute an information for the indictment returned by the grand jury, prior to the jury's being sworn. Secs. 3953, 4376, R.S. 1939; State v. Beard, 334 Mo. 909, 68 S.W.2d 698; State v. Poor, 286 Mo. 644, 228 S.W. 810; State v. Rizor, 353 Mo. 368, 182 S.W.2d 525; State v. Brown, 168 Mo. 449, 68 S.W. 568; State v. Goodwin, 333 Mo. 168, 61 S.W.2d 960; State v. Mandell, 353 Mo. 502, 183 S.W.2d 59; State v. Kirkwood, 340 Mo. 185, 100 S.W.2d 450. (2) The verdict is sufficient in form and substance and complies with Sec. 4378, R.S. 1939, and there is substantial evidence to support the verdict. Sec. 4378, R.S. 1939; State v. Batson, 342 Mo. 450, 116 S.W.2d 35; State v. Barbata, 336 Mo. 362, 80 S.W.2d 865; State v. Cropper, 327 Mo. 193, 36 S.W.2d 923; State v. Long, 253 S.W. 729; State v. Goodwin, 333 Mo. 168, 61 S.W.2d 960. (3) Assignments of error numbers 8, 9 and 12 in defendant's motion for new trial are too general and indefinite to preserve anything for review by this court. Sec. 4125, R.S. 1939; State v. Fowler, 189 S.W.2d 549; State v. Kennon, 123 S.W.2d 46; State v. Ross, 196 S.W.2d 799; State v. Page, 186 S.W.2d 503; State v. Biven, 151 S.W.2d 1114; State v. Bridges, 123 S.W.2d 67; State v. London, 84 S.W.2d 915. (4) The court committed no error in overruling the defendant's demurrer at the close of the state's case and at the close of the whole case. State v. Starling, 207 S.W. 767; State v. Ring, 346 Mo. 290, 141 S.W. 57; State v. Denison, 178 S.W.2d 449; State v. Myers, 44 S.W.2d 71. (5) The trial court committed no error in refusing to grant another continuance at the outset of the proceedings. State v. Golden, 353 Mo. 585, 183 S.W.2d 109; State v. Williams, 263 S.W. 198; State v. Wilson, 242 S.W. 886; State v. Sherrell, 198 S.W. 464; State v. Eggleston, 27 S.W.2d 726.

OPINION

Tipton, J.

In the circuit court of the city of St. Louis, Missouri, appellant was convicted of murder in the first degree for the killing of Frank Adams, and his punishment was assessed at imprisonment in the state penitentiary for his natural life. He has duly appealed from that sentence to this court.

Appellant has filed no brief in this court; we will, therefore, decide the points raised in his motion for a new trial. His first five assignments of error deal with the trial court's refusal to grant him a continuance after an information had been substituted for an indictment. At the beginning of the trial, but prior to the time the jury was sworn to try the cause, the court informed counsel for appellant that the State had called its attention to a defect in the indictment. The indictment stated that deceased died on May 23, 1945, when, in fact, he died on May 22, 1945. In view of this fact, the court informed appellant that it was quashing the indictment and at the request of the State was giving it leave to file a substituted information. Appellant pleaded surprise and requested the court to grant a continuance to allow him to make inquiry into the matter.

The record shows the following:

"The Court: Well, I don't think there is any surprise to it in a real sense. It is just a correction of a date.

Mr. Evans: Your Honor, we assure you it is a surprise in a real sense.

The Court: In what real sense? What is the difference in your defense?

Mr. Evans: I am not here to disclose what the defense is.

The Court: All right; your objection is overruled.

Mr. Wilson: Well, save our exception.

Mr. Evans: Will you let us examine this paper in its entirety to see if that is the only change?

The Court: You may examine it now, and as soon as you can if you have any other objection to make you make it.

Mr. Evans: Outside of that it seems to be a copy in all particulars, but we still object.

The Court: Well, your objection is overruled."

Section 3953, R.S. Mo., 1939, reads:

"An information may be amended either as to form or substance at any time before the jury is sworn, but no such amendment shall be allowed as would operate to charge an offense different from that charged or attempted to be charged in the original information. If an indictment be held to be insufficient either as to form or substance, an information charging the same offense charged or attempted to be charged in such indictment may be substituted therefor at any time before the jury is sworn. No amendment of the information or substitution of an information for an indictment as herein provided shall cause a delay of the trial unless the defendant shall satisfy the court that such amendment or substitution has made it necessary that he have additional time in which to prepare his defense."

We cannot say that the trial court abused its discretion in not granting the appellant a continuance. State v. Golden, 353 Mo. 585, 183 S.W. 2d 109.

The effect of appellant's next assignment in his motion for a new trial is that the information failed to state any offense against the laws of the State of Missouri.

The information charged that the appellant "in some way and manner and by some means, instruments and weapons to this informant unknown, did then and there feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, hit, strike, beat and wound the said Frank Nicholas Adams in and upon the head and body . . . giving to the said Frank Nicholas Adams . . . one mortal wound, of which said mortal wound the said Frank Nicholas Adams then and there on the said 22nd day of May, A.D. 1945, at the said City of St. Louis, Missouri, did die."

Section 4376, R.S. Mo., 1939, defines murder in the first degree as follows:

"Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglarly or mayhem, shall be deemed murder in the first degree."

This section makes every killing that is willful, deliberate and premeditated, murder in the first degree. It was not necessary to state in the information the manner in which the deceased was killed. The information charged that the appellant "in some way and manner and by some means, instruments and weapons to this informant unknown, did . . . hit, strike, beat and wound the said Frank Nicholas Adams . . ." It was not necessary to state in the information the weapon used by the appellant in making the assault. State v. Beard, 334 Mo. 909, 68 S.W. 2d 698; State v. Rizor, 353 Mo. 368, 182 S.W. 2d 525. We hold that the information properly charged the appellant with the crime of murder in the first degree.

Appellant's next assignment of error is that "the court erred in refusing to sustain the motion of the defendant, after the first witness for the State had been sworn and stated her name, to deny the introduction of any testimony on the part of the State because of the insufficiency of said information." We have already ruled the information properly charged the appellant with the crime of murder in the first degree.

The next five assignments of error are that incompetent, immaterial and irrelevant evidence was admitted; that the court refused to admit competent, relevant and material evidence offered on behalf of appellant; that the verdict is the result of passion and prejudice; that the verdict is against the evidence and the law under the evidence; and that the verdict should have been for the appellant.

None of these assignments of error complies with Section 4125, R.S. Mo., 1939, which provides that grounds or causes for a new trial must be set forth in detail and with particularity. Since these assignments do not follow this section they are overruled.

Appellant next contends that his demurrers to the evidence should have been sustained.

We will review the evidence most favorable to the State. Frank Nicholas Adams, the deceased, operated a second hand store at 2905 Park Avenue, in St. Louis, Missouri. He purchased, sold and repaired furniture, electric irons, clocks, electrical...