State v. Duncan

• Decision Date: 05 March 1935
• Parties: The State v. Major Duncan, Appellant
• Court: Missouri Supreme Court

80 S.W.2d 147

336 Mo. 600

The State v. Major Duncan, Appellant

Supreme Court of Missouri

March 5, 1935

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge.

Reversed and remanded.

N C. Hawkins for appellant.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.

(1) The information charging burglary and larceny in one count is sufficient in form and substance. Secs. 4048, 4056, 4064, R S. 1929; State v. Grubbs, 289 S.W. 852, 316 Mo. 250; State v. Stuart, 289 S.W. 822, 316 Mo. 154. (2) The court committed no prejudicial error when he permitted the defendant to be tried and sentenced under a name that he was known to go by, assigned as error in points 1 and 2 in the motion for a new trial. Secs. 3509, 3561, R. S. 1929; Kirk v. State, 6 Mo. 471; Secs. 3562, 3563, R. S. 1929; State v. Stokes, 232 S.W. 106, 288 Mo. 558. (3) Instruction 1, given by the court in this case, which was the main instruction, properly states the law, assigned as error in point 4 of the motion for new trial. State v. O'Leary, 44 S.W.2d 53; State v. Harrison, 285 S.W. 87; State v. Yandle, 66 S.W. 532, 166 Mo. 594; Sec. 3734, R. S. 1929; State v. Bird, 228 S.W. 599. (4) Instruction 3 given by the court, relating to statements made by defendant after the alleged offense, properly states the law, assigned as error in part 5, by the motion for new trial. State v. Wilson, 122 S.W. 671, 223 Mo. 192. (5) Instruction 5 relating to an alibi, was properly given in this case, assigned as error in part 6 in the motion for new trial. State v. Hale, 56 S.W. 881, 156 Mo. 109. (6) Instruction 6, relating to flight, was properly given in this case, assigned as error in point 7, in motion for new trial. State v. Turner, 274 S.W. 36.

OPINION

Ellison, J.

The appellant, a negro twenty-eight years old at the time of the trial, and designated in the information by the name of Major Duncan, was charged with burglary. Specifically the State's evidence was that he broke into a barber shop at Hayti in Pemiscot County conducted by W. B. Baker and stole two razors and three pairs of hair clippers. He was convicted and his punishment assessed by the jury at two years' imprisonment in the State penitentiary. He has filed no brief in this court but his motion for new trial contains a number of assignments which we shall take up for consideration.

Baker, who operated the barber shop, testified he had known the appellant ever since 1920. He said that on November 28, 1932, the appellant and another negro came to the shop stating they had no money and asked him to give them a haircut free of charge. He cut the hair of both of them, and when told they were hungry and had had no breakfast he locked up his shop by hooking the side door screen and went to his home to get some food for them. He left the appellant and several other negroes seated out in front. He was away about twenty minutes. When he returned all the negroes were gone, the screen door had been torn open, the lock on the drawer in which the tools were kept had been beaten off, and the aforementioned razors and hair clippers were missing.

About an hour later Constable Roy Wyrick found the appellant loafing at a cotton compress in Hayti. He arrested him and found on his person the missing clippers and razors and a pair of scissors. On being taken before a justice of the peace the appellant admitted his guilt, waived preliminary hearing and told the constable he wanted to plead guilty as soon as the circuit court convened. It appears that about a month afterward while awaiting trial he escaped from the Pemiscot County jail and went across the State line to Blytheville, Arkansas. From there he was brought back to Missouri by Constable Wyrick. Mr. Wyrick testified the defendant on trial under the name of Major Duncan was the negro he arrested for the offense, placed in the Pemiscot County jail, and brought back from Arkansas. The justice of the peace said the appellant was the negro who appeared before him, and there was other substantial evidence that the Major Duncan charged by the information and the appellant were the same person.

The prosecuting witness, Baker, testified the appellant had two names, Major Duncan, the name by which he was charged, and Leon Austin; that he was called sometimes by one and sometimes by the other, and that he called himself by both names. One witness, Kelley, said that while he and the appellant were confined in the Pemiscot County jail a week or so before the trial the appellant told him not to address him as Major but to call him Leon. Kelley also said the appellant declared that if the barber, Baker, did not testify against him, he would beat the case; and that when he got out he would kill the witnesses who appeared against him.

The record recites that when brought up for arraignment the appellant informed the court and also the prosecuting attorney that "his true name is Leon Austin." He then waived formal arraignment and pleaded not guilty. His defenses on the facts were: that he was not the person charged by the information; an alibi; and that no burglary was committed. On the question of his identity his attorney, Mr. N. C. Hawkins, a member of the Pemiscot County Bar appointed by the court to represent the defendant, testified very earnestly that the appellant was a different negro from the Major Duncan against whom the prosecution had been instituted. He had talked to both negroes in his capacity as their attorney, and he said there was a marked difference in their height, weight, voices and other physical characteristics. Clyde Maloney, a deputy sheriff who had fed the prisoners in the Pemiscot County jail, likewise testified Major Duncan, the original defendant, was not the same person as the appellant. Mr. C. F. Cooper, an attorney of Blytheville, Arkansas, who, also, represented the appellant at the trial, said the appellant was named Leon Austin; that he had known the Austin family at Blytheville for more than two years; that appellant was never called Major Duncan, and that he had recently theretofore been tried and acquitted of a criminal charge at Blytheville under the name of Leon Austin. The appellant, his father and two other negroes from Blytheville all swore appellant's name was Leon Austin, not Major Duncan; that he was never called by the latter name, and that he was in and around Blytheville when the Baker barber shop at Hayti was broken into, and for several months preceding and following that event. Appellant denied he was the negro who was arrested and charged with the burglary, and who later escaped from jail. Mr. Hawkins, the appellant's attorney, swore that Baker, the proprietor of the barber shop, told him he had not locked the shop when he went to his home to get food for the two negroes, and that he left them inside of it. This, Baker denied.

The appellant's motion for new trial recites that the court administered an oath to the talesmen on their voir dire examination "to answer such questions as may be propounded to you touching your qualifications to serve as jurors, in the case wherein the State of Missouri is plaintiff and Major Duncan is defendant;" and that the twelve jurors selected were sworn "to well and truly try the case wherein the State of Missouri is plaintiff and Major Duncan is defendant." The record brought up does not show this to be the fact, and the motion for new trial is not verified and does not prove itself. But the record does show the following. The court gave six instructions at the request of the State and also supplied the jury with two blank forms of verdict, all of which were captioned "State of Missouri, plaintiff, v. Major Duncan, defendant;" and the text of the first of these instructions and the two blank forms of verdict referred to the appellant as "the defendant, Major Duncan." The verdict returned by the jury likewise was captioned "State of Missouri, plaintiff, v. Major Duncan, defendant" and recited "We, the jury in the above entitled cause, find the defendant, Major Duncan, guilty," etc. The appellant's motion for new trial was captioned "State of Missouri, plaintiff, v. Leon Austin, defendant," and referred to him by the name of Leon Austin; and his affidavit for appeal to this court was similarly captioned.

I. The main point in appellant's motion for new trial is that "the court erred in failing and refusing to give this defendant a trial and try him under his true name, Leon Austin, as required by law and Section 3561, R. S. 1929." This section is as follows:

"If a defendant be indicted by the wrong name, unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment. If he allege that another name is his true name, it must be entered in the minutes of the court; and after such entry, the trial and all other proceedings on the indictment shall be had against him by that name, referring also to the name by which he is indicted, in the same manner, in all respects, and with the same consequences as if he had been indicted by his true name."

This case is prosecuted by information, not by indictment. But Section 3509, Revised Statutes 1929, provides that all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials upon indictments. The fact that this case is based on an information instead of an indictment therefore will not prevent the application of the above-quoted provisions of Section 3561 thereto. The record shows the appellant did in open court declare his true name to be Leon Austin before pleading not guilty. Thereafter the trial did not proceed against him by that name. On the contrary, the State's evidence, the court's...