State v. Elgin

• Decision Date: 14 June 1965
• Docket Number: No. 1,No. 51011,51011,1
• Citation: 391 S.W.2d 341
• Parties: STATE of Missouri, Respondent, v. Lewis R. ELGIN, Appellant
• Court: Missouri Supreme Court

Page 341

391 S.W.2d 341

STATE of Missouri, Respondent, v. Lewis R. ELGIN, Appellant.

No. 51011.

Supreme Court of Missouri, Division No. 1.

June 14, 1965.

Norman H. Anderson, Atty. Gen., Jefferson City, Robert B. Curtis, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Robert E. B. Bunch, and William J. Gilwee, Kansas City, for appellant.

BOHLING, Special Commissioner.

Lewis R. Elgin was charged with the murder in Jackson County of his wife in the second degree. He was found guilty of manslaughter and sentenced to confinement in the county jail for one year. Secs. 559.070, 559.140. Statutory references, unless otherwise indicated, are to RSMo 1959 and V.A.M.S. He questions the indictment, the admission of testimony, the submissibility of the State's case, and the refusal of instructions.

Defendant's motion to quash the indictment, filed just before the trial, was overruled. He now claims error because the indictment was not signed by the prosecuting attorney, although it was signed by an assistant prosecuting attorney of Jackson County. He stresses Sec. 545.040 and State v. Bruce, 1882, 77 Mo. 193.

Said Sec. 545.040 (new Sec. 1798 of RSMo 1879) reads: 'Every indictment must be signed by the prosecuting attorney, and when the grand jury return any indictment into the court the judge must examine it, and if the foreman has neglected to endorse it 'a true bill,' with his name signed thereto, or if the prosecuting attorney has not signed it, the court must cause the foreman to endorse or the prosecuting attorney to sign it, as the case may require, in the presence of the jury.' See also Sec. 540.250 (Sec. 1795 of RSMo 1879) on certifying a true bill.

In State v. Bruce, supra, the indictment was not signed by any attorney. The court, stating prosecuting attorneys had not been required to sign indictments prior to said Sec. 1798, also said (77 Mo. l. c. 193): 'This section is imperative with regard to the signature of the prosecuting attorney.' And (l. c. 195): 'We are satisfied that no paper can be regarded as an indictment without the signature of the prosecuting attorney, and the certificate of the foreman of the grand jury that it is a true bill. Both are required, and neither is a mere formality that may be dispensed with.'

In State v. Falbo, Mo., 1960, 333 S.W.2d 79, 284[2, 3], we held an indictment signed by an assistant prosecuting attorney instead of the prosecuting attorney was not invalid. However, in that case the court's attention was not directed to Sec. 545.040 or to the Bruce case. See State v. Swinney, 1887, 25 Mo.App. 347. We think the Falbo case was correctly ruled for several reasons.

The Constitution of 1875, Art. II, Sec. 12, so far as pertinent here, provided: 'That no person shall, for felony, be proceeded against criminally otherwise than by indictment * * *.' RSMo 1879, p. LVI and RSMo 1899, p. 64. Said Sec. 12 was amended November 6, 1900, to permit prosecutions for felonies and misdemeanors to be by indictment or information, making them 'concurrent remedies.' Laws 1899, p. 382; Laws 1905, p. 314; RSMo 1909, p. 48 and Mo.Const.1945, Art. I, Sec. 17 (said Sec. 12 as amended), V.A.M.S.

We have adopted rules (V.A.M.R.) bearing on this subject matter. Consult Mo.Const.1945, Art. V, Sec. 5.

Rule 24.01 provides: 'The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney, and the indictment shall also be signed by the foreman of the grand jury.' Rule 24.16 provides: '* * * An information shall be signed by the prosecuting attorney * * *. * * *'

Rule 36.05 provides: 'As used in these Rules, the term * * * 'Prosecuting Attorney' shall include the * * * associate and assistant prosecuting attorneys, * * * where, by law, they are authorized and permitted to act.'

Assistant prosecuting attorneys are authorized for Jackson County and are required to possess the same qualifications and are subject to the same penalties for neglect of duty as the prosecuting attorney. Sec. 56.150. They 'shall attend the grand jury of the county if required so to do by the prosecuting attorney; assist and advise said body; examine witnesses and preserve their testimony,' and may sign in their own name informations in criminal cases. Secs. 56.180, 56.150 and see Secs. 540.130 and 540.140.

Our Rule of Jeofails provides that the proceedings on an indictment or information shall not be stayed or affected 'for want of the averment of any matter not necessary to be proved; or, thirteenth, for any other defect or imperfection which does not tend to the prejudice the substantial rights of the defendant upon the merits.' Rule 24.11; Sec. 545.030(15, 18); RSMo 1879, Sec. 1821.

In proper instances an information charging the same offense may be substituted for an indictment defective in form or substance. Rule 24.02. Section 545.300 is the predecessor of Rule 24.02 in its application to indictments and was Sec. 3564, RSMo 1929, which appears to have been first enacted by Laws 1925, p. 195, Sec. 3908a.

In view of the changes in the law, an indictment should not now be held a nullity on the ground it is signed by an assistant prosecuting attorney instead of the prosecuting attorney. Compare Rule 24.01 with Sec. 1798, RSMo 1879, now Sec. 545.040. The assistant prosecuting attorney is presumed to have been lawfully in attendance upon the grand jury for the discharge of the prosecuting attorney's official duties. State v. Carey, 318 Mo. 813, 1 S.W.2d 143[1-3]; State v. Falbo, supra; 67 C.J.S. Officers Sec. 151. The fact that no attorney signed the indictment in the Bruce case distinguishes it from this case. Apparently Sec. 545.040 places the foreman of the grand jury and the prosecuting attorney on the same level with respect to signing indictments. State v. Mertens, 1851, 14 Mo. 94, held the requirement that the foreman certify the indictment over his signature to be a true bill was merely directory, and that it was too late after a defendant was convicted to raise the objection that the indictment had not been properly certified. The Mertens case was approved in State v. Burgess, 1857, 24 Mo. 381, 69 Am.Dec. 433. The Bruce case, notwithstanding the language there used, mentioned the Mertens and Burgess cases but did not overrule them; and they have been followed since. See State v. Majors, Mo., 237 S.W. 486, 488. The constitutional provision that an accused has the right 'to demand the nature and cause of accusation' (Art. I, Sec. 18(a)) requires an indictment or information to state all the essential elements of the offense (State v. Schultz, Mo., 295 S.W. 535). The ministerial act of a prosecuting attorney in signing an indictment goes to the form in which the charge is presented. The substance of the offense is to be found in the body of the charge. We doubt if in any criminal trial there has been an attempt to prove as part of the merits that the prosecuting attorney signed the indictment. Assistant prosecuting attorneys have authority to sign informations (State v. Easley, Mo., 338 S.W.2d 884[1, 2] and citations), and informations may be substituted for defective indictments. It logically follows that the signing of an indictment by an assistant prosecuting attorney does not now cause the indictment to become a nullity.

Under Rule 25.06 (see Sec. 545.220) defenses and objections that can be determined without trial of the general issue are to be raised by motion before trial; and paragraph (e) thereof reads: 'Any motion filed under the provisions of these Rules shall specify clearly the defense or grounds of objection relied upon by the defendant and unless it does so it shall be disregarded by the court.'

Defendant's motion to quash the indictment charged a general violation of Sec. 545.040 and failed to specify whether defendant's objection involved a failure of the foreman of the grand jury to properly sign the indictment, or that the prosecuting attorney had not signed the indictment, or that an assistant prosecuting attorney signed the indictment in lieu of the prosecuting attorney. If in these circumstances the court decided to disregard defendant's motion to quash, we are not disposed to interfere.

We perceive of no reason why an information should not be substituted for the indictment in this case. Rule 24.02; Sec. 545.300. The better practice is to obviate questionable defects of this nature by substitution or amendment rather than risk the reversal of a judgment after the time, trouble and expense of a trial and an appeal.

Defendant says the State failed to make a case, having failed to establish that the shooting was not accidental.

Several of the State's witnesses (defendant offered no witness) testified defendant admitted he shot his wife, Norma Jean Elgin, with a 12-gauge shotgun on December 8, 1962, stating the shooting was accidental. Mrs. Elgin died that day of the wound received. Defendant's statements were to the effect his wife, after carrying some laundry to their automobile, returned and stood in the doorway of their home waiting for him; that he went to a closet for a shotgun he intended to 'hock'; that he did not know the gun was loaded; that he got the gun, threw it in a more or less shooting position; that the gun fired and he had shot his wife. The gun, taken at the scene, had an empty or fired shell in its barrel and two loaded shells in its magazine.

There was testimony from Mr. and Mrs. Cecil Peterson, Mrs. Elgin's parents and with whom the couple had lived for some time, and also from a neighbor at a different location, that defendant had threatened to kill his wife on several occasions.

Two officers of the Kansas City, Missouri, Police Laboratory testified they made many tests trying to make said shotgun misfire, and that they were unable to cause it to fire accidentally.

The jury was not bound by defendant's self-serving...