State v. Crow

• Decision Date: 08 March 1965
• Docket Number: No. 2,No. 50863,50863,2
• Citation: 388 S.W.2d 817
• Parties: STATE of Missouri, Respondent, v. Glen E. CROW, Appellant
• Court: Missouri Supreme Court

Page 817

388 S.W.2d 817

STATE of Missouri, Respondent, v. Glen E. CROW, Appellant.

No. 50863.

Supreme Court of Missouri, Division No. 2.

March 8, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 12, 1965.

Thomas F. Eagleton, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, fir respondent.

Glen E. Crow, appellant pro se.

STOCKARD, Commissioner.

Glen Eugene Crow was found guilty by a jury of burglary, second degree, and stealing and sentenced to imprisonment for ten years for burglary and five years for stealing, the two sentences to run concurrently. Upon appeal that judgment was reversed and the cause remanded for allocution and resentencing because allocution was held without the presence of counsel over the objection of defendant. State v. Crow, Mo., 377 S.W.2d 129.

When the case was here previously the transcript did not contain a motion for a new trial, but it did show that at the time of allocution defendant insisted that he had attempted to mail one from the jail where he was confined, and it also indicated that defendant handed to the trial court what he said was a copy of his motion. In our previous opinion we said this: 'At the time of allocution when this matter was presented, the trial court should have determined the factual issue, and made a record of its findings, of whether such motion, if mailed at the time defendant asserted it was, would have been timely, and if so, whether its failure to reach the clerk was the result of any unlawful interference on the part of public officials. * * * An alternative action would have been to incorporate into the record the copy of the motion for new trial, if in fact one was presented by the defendant to the court at that time, and if, as a matter of law, each assignment of error therein was without merit, defendant could not have been prejudiced by the fact the motion was not filed, regardless of the reason.'

The transcript now shows that if a motion for new trial had been mailed by defendant at the time he claimed, in the normal course of mail service it would have been received and timely filed. After a hearing the trial court found that a motion for new trial was not filed, but it made no findings as to whether defendant did in fact attempt to mail one from the jail, and if so, whether the reason it was not received and timely filed was because of any unlawful interference on the part of public officials. The copy of the motion which defendant asserted he had handed to the trial court at the time of the first allocution could not be located. However, the trial court then granted defendant permission to file a motion for new trial within ten days, and defendant filed such a motion which he said contained all the assignments of error which were in the motion he had attempted to mail to the court from the jail. He also filed what he called a 'Supplemental Motion for New Trial' which he admits contained new and other assignments of error. A hearing was held on the two motions, and each assignment of error contained therein was argued to the court by counsel, considered by the court, and overruled.

We have repeatedly held that the provisions of Supreme Court Rule 27.20, V.A.M.R. are mandatory, State v. Franklin, Mo., 379 S.W.2d 526, and that a motion for new trial must, in all events, be filed within the time therein provided. State v. Knicker, Mo., 364 S.W.2d 544; State v. Hooper, Mo., 364 S.W.2d 542; State v. Ash, Mo., 286 S.W.2d 808; State v. Crocker, Mo., 335 S.W.2d 32. The trial court was without 'power' to extend the time beyond forty days after the return of the verdict for filing a motion for new trial, and the motions in this case, filed long thereafter, were a nullity, State v. Crocker, supra, and preserve nothing for appellate review. See State v. Hooper, supra. However, defendant has provided the alternative referred to in our previous opinion, and if, as a matter of law, each assignment of error in the motion he asserts he attempted to mail from the jail is without merit, defendant could not have been prejudiced by its failure to have been timely filed, regardless of the reason therefor. We shall, therefore, examine amine the assignments of error in that motion.

The first assignment is that the trial court erred in 'overruling defendant's personal objection to trial on March 5, 1962, upon the grounds of insufficient notice to defendant of the amendment of the information, which was amended to include allegations of prior convictions.' At the trial defendant was represented by employed counsel of his own selection. The transcript shows that on February 23, 1962, the prosecuting attorney notified appellant's counsel by letter of his intention to amend the information to include allegations invoking the habitual criminal act, that the amendment was made on February 28 and appellant's counsel received a copy. On March 5, the day the case was set for trial, appellant's counsel announced that he was ready for trial. Appellant then stated that he 'should have three days notice, sufficient time to prepare a defense against this criminal act.'

Supreme Court Rule 24.02, V.A.M.R., authorizes the amendment of an information at any time before verdict 'if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.' The amendment to incorporate allegations invoking the application of the habitual criminal act did not constitute a separate or different offense, and in view of notice to appellant's counsel of the amendment, and counsel's announcement that he was ready for trial, no prejudice could or did occur. Defendant offered nothing to the trial court to substantiate his oral request for a continuance, made contrary to the announcement of his counsel that he was ready for trial, and whether or not the trial court abused its discretion in its ruling is to be determined from what was then presented to it. This assignment of error is of no merit.

The second assignment is that the 'trial court erred in overruling defendant's objection to use of an alleged prior felony conviction and sentence for attempting to break jail.' He asserts that this was a misdemeanor, and in that he is correct. Section 557.410, V.A.M.S. However, on the previous appeal this matter was discussed in detail, and it was there held that it was alleged in the amended information that defendant had previously been convicted and sentenced for the offense of stealing chickens in the nighttime, which is a felony and which is punishable by confinement in the penitentiary, and the allegation and proof of the previous offense of attempting to break jail, and the finding by the trial court in respect thereto was surplusage. See State v. Crow, supra, 377 S.W.2d at p. 132. This assignment of error is of no merit.

The third assignment is that the 'trial court erred in overruling defendant's objection to the prosecuting attorney's cross-examination of defense witness, Mrs. Marsella Crow, wife of the defendant, wherein said prosecutor asked the following question, 'Wasn't your house raided by the police and a lot of stolen articles taken out of it.'' The transcript shows that there was no objection to this particular question, and that an objection, made after the three immediately following questions, 'to any further questioning along this line' was sustained. All the relief requested by appellant was granted. No error occurred, State v. Velanti, Mo., 331 S.W.2d 542, 546, 547, and this assignment of error is without merit.

The fourth assignment is that 'the trial court erred in failing to give the jury, as a matter of law of the case, an instruction setting out the applicable law to guide the jury on the matter of guilt and punishment relating to a verdict of guilty on stealing alone.' He also asserts the court was required to instruct the jury that 'upon a finding of 'Guilty of stealing and not guilty of burglary' the value of the property being less than fifty dollars, such offense is a misdemeanor and the jury is required to fix the punishment of not more than one year in...