State v. Dixon

• Decision Date: 14 July 1923
• Docket Number: No. 24209.,24209.
• Parties: STATE v. DIXON.
• Court: Missouri Supreme Court

253 S.W. 746

STATE v. DIXON.

No. 24209.

Supreme Court of Missouri, Division No. 2.

July 14, 1923.

Appeal from Circuit Court, Moniteau County; John G. Slate, Judge.

Doyle Dixon was convicted of stealing, and he appeals. Reversed and remanded.

W. D. Steele and Paul Barnett, both of Sedalia, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

HIGBEE, C.

The defendant was charged on information in the circuit court of Pettis county with having feloniously stolen, in the nighttime, on September 12, 1921, 10 silverlaced Wyandotte hens from the premises upon which the dwelling house of the owner of the fowls, N. H. Lee, is situated, contrary to section 3314, R. S. 1919. A change of venue was awarded on the application of the defendant to Moniteau county. On the trial the defendant was found guilty, but, the jury being unable to agree upon the punishment, the court sentenced him to imprisonment in the penitentiary for a term of 3 years, from which he has appealed.

Silas Lee, aged 15, a witness for the state, testified that he stood guard while the defendant stole the chickens at the time and place mentioned in the information. They put them in a sack and hid them in the weeds near the road. The next morning they found one of the hens dead. They hid her in the brush near the road, and took the other hens in defendant's automobile to Sedalia, where they sold them, and divided the money.

The defendant testified that he did not steal the chickens; that he was at home on the night of September 12th; but he admitted that he took Silas Lee and the chickens to Sedalia on the following day; that he did, this at Silas Lee's request, not knowing that the chickens were stolen; that the chickens were sold; that the check was made payable to him for $5.40, and that he received $2.50 for taking the chickens to Sedalia. The defendant assigns numerous errors, some of which we will consider.

1. When the cause was called for trial, the defendant moved to quash the information because no names of witnesses were indorsed on the copy of the information contained in the transcript of the record. Pending the motion to quash, the prosecuting attorney exhibited to the court the original information on which the names of the witnesses for the state were properly indorsed, and by leave of court their names were indorsed on the copy of the information contained in the transcript, and the motion to quash was overruled. We think this was permissible under section 3889, R. S. 1919. State v. Barrington, 198 Mo. 23, 70, 95 S. W. 235.

2. But applicant insists this was an amendment to the information which, under the ruling in State v. Bartlett, 170 Mo. 658, 673, 71 S. W. 148, 59 L. R. A. 756, may not be permitted after the change of venue was granted. In that case a change of venue was awarded to Lewis county, where the prosecuting attorney filed "an amended information. Section 3853, It. S. 1919, reads:

"The statute of jeofails as applicable to criminal pleadings and proceedings in prosecutions by indictment, shall apply to all proceedings in prosecutions by information; and any affidavit or information may be amended in matter of form or substance at any time by leave of court before the trial, and on the trial as to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant, on the merits, and no amendment shall cause any delay of the trial, except at the instance of the defendant for good cause shown by affidavit."

The prosecuting attorney is required to follow and conduct criminal prosecutions taken to other counties on changes of venue. The statute reads that the "information may be amended * * * at any time by leave of court before trial." It will be seen that the language of the statute is broad enough to meet the exigencies of any case in which an amendment of the information may be required; otherwise we will interpolate into the section an exception not contemplated by the lawmakers, which is that the right of the state to amend an information is limited to the court in which the prosecution originates. The right to amend an information seems to be as broad as the right to amend pleadings in civil cases. A change of venue is awarded to a defendant as a privilege when it appears he cannot have a fair and impartial trial in the county where the crime is charged to have been committed. It would be anomalous to contend that, by taking a change of venue, the defendant could deprive the state of the right of amendment, and thus defeat a prosecution because of a defect in an information that is unqualifiedly amendable under the statute.

3. But we do not regard the indorsement of the names of the witnesses as an amendment of the information. In State v. Berkley, 109 Mo. 665, 667, 19 S. W. 192, 193, we said:

"We regard it as settled that the court has authority to pursue this course, even when the names of none of the witnesses are indorsed on the indictment."

And we may add that it was the duty of the prosecuting attorney, as the representative of the state, to follow the prosecution of this case on the awarding of the change of venue until its conclusion, and that his privilege as representative of the state to' amend the information, if need be, and to indorse the names of witnesses thereon, was not curtailed by reason of the change of venue. The ruling referred to in State v. Bartlett, supra, should no longer be followed. The motion to quash the information was properly overruled.

4. The names of the witnesses having been, by leave of court, indorsed on the information, the defendant orally moved that the cause be continued "on account of the fact that the list of witnesses has been furnished for the first time." The defendant contended that the transcript of the record imported verity, and hence the court erred in permitting the showing that the names of the witnesses were in fact indorsed on the original information; that in contemplation of law the defendant was ignorant of their names, and was entitled to a continuance. As cause for a continuance there was obviously no merit in the contention. The application was properly overruled.

5. Appellant complains of prejudicial statements made by the prosecuting attorney in his opening statement to the jury of prejudicial offers of evidence and of abuse of the privilege of argument to the jury. One statement complained of was that "several weeks before September 12 the neighbors, in the neighborhood of defendant's house and in the neighborhood of where later there will be evidence to show chickens were stolen noticed Doyle Dixon going up and down the road at nearly all times of the day and night." Again: The evidence will show that the next day (September 13th), at Sedalia, Doyle Dixon sold these silver-laced Wyandotte chickens, and he received a check there made out to him for a certain sum of money. The evidence will be that two days later Doyle Dixon sold another batch of chickens at this same poultry house. Again: The evidence will be that Doyle Dixon and Silas Lee, this young boy, who is a state's witness, and stands here charged with no crime, had a scheme or conspiracy by which they were to commit many chicken thefts. Again: That young Silas Lee was constantly called upon by this man, Doyle Dixon and asked to go with him on these various chicken raids; that Doyle Dixon, after one of these chicken raids, would give young Lee a certain part of the proceeds. Each of these statements was objected to by the defendant for the reason "that it attempts to give the jury to understand that he [defendant] was connected with other crimes other than the crime with which he is...