State v. Fox
| Decision Date | 12 December 1927 |
| Docket Number | No. 27957.,27957. |
| Citation | 300 S.W. 820 |
| Parties | STATE v. FOX |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.
Elmer Fox was convicted of second degree murder, and he appeals. Affirmed.
North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty. Gen., for the State.
On December 13, 1925, the defendant was found guilty of murder in the second degree, and appealed from a sentence of imprisonment in the penitentiary for a term of 20 years, in accordance with the verdiet.
An information was filed in the circuit court of St. Francois county, which, following approved precedents, charged that the defendant, on September 5, 1925, at the county of St. Francois and state of Missouri did then and there feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought, shoot and kill Charles E. Morris.
A demurrer to the information, on the ground that it failed to charge the defendant with the commission of any crime, was overruled. An amended information was filed, which is substantially a copy of the first information, to which this formal common-law conclusion was added, to wit:
"And so the prosecuting attorney aforesaid, upon his official oath aforesaid, does say that the said Elmer Fox, etc., aid kill and murder," etc.
In State v. Rector, 126 Mo. 328, 341, 23 S. W. 1074, and cases following that ruling, this formal conclusion was held essential to charge murder.
A motion was filed to quash the amended information because: (1) The original information failed to state facts sufficient to charge any offense; (2) it failed to charge murder in any degree; (3) section 3762, R. S. 1919, as amended Laws of 1925, p. 195, applies only to informations filed in a justice court, and has no application to the case at bar; (4) the amended information is not authorized by section 3908a, Laws 1925, p. 195, because said section provides that no such amendment shall be allowed as would operate to charge an offense different from that charged, or attempted to he charged, in the original information; (5) the amended information fails to charge murder under the laws of Missouri.
1. This motion was properly overruled. The appellant has filed no brief, but we infer that learned counsel were of the opinion that the first information simply charged manslaughter because it omits the formal conclusion above referred to. But that view was exploded in Ex parte Beet (Mo. Sup.) 287 S. W. 463. The first information charged that the defendant did feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought shoot and kill the deceased. This charge includes all the elements of murder in the first degree. State v. McCarver, 194 Mo. 717, 727, 92 S. W. 684; State v. Baird, 297 Mo. 219, 222, 248 S. W. 596; State v. Young, 314 Mo. 612, 286 S. W. 29, 30; Kelley's Crim. Law, § 478. Moreover, if the original information had been defective in any respect, section 3908a, Laws 1925, p. 195, which is a general statute, authorized its amendment either as to form or substance, so long as the amendment did not "charge an offense different from that charged or attempted to be charged in the original information." The amendment in this case effected no change in the original information, either in form or substance. The right to amend an information in matter of form or substance has long obtained under our practice. Sections 3762 and 3853, R. S. 1919; State v. Sillbaugh, 250 Mo. 308, 312, 157 S. W. 352; State v. Rennison, 306 Mo. 473, 482, 267 S. W. 850. In this view of the case the questions sought to be raised by appellant at the trial as to the constitutionality of section 3908a, Laws 1925, p. 195, but not set forth in detail or with particularity in the motion for new trial, as required by section 4079, Laws 1925, p. 198, must be disregarded.
2. The motion for new trial charges error, In that the court refused to require the 30 men qualified to serve as jurors to remain in charge of the sheriff until the challenges were made.
On the afternoon of the first day of the trial, when 30 of the panel had been qualified to serve as jurors, after being duly admonished by the court, they were excused until 3:30 p. m. of that day, over appellant's objection. The jury had not been impaneled or sworn at the time the recess was taken. Section 4021, Laws 1925, p. 197, reads:
"In all felony cases the trial court may, of its own motion, or when requested by the attorney for the state or for the defendant, place all jurors found by the court to be competent to sit in the trial of the cause in the custody of an officer or officers of the court until the entire panel shall have been made up and the peremptory challenges shall have been made and the jury sworn to try the cause; provided, however, that nothing in this section shall be construed as superseding or annulling any of the provisions of sections 4026 and 4027."
This section plainly vests a discretion in the trial court to place the panel in the custody of an officer or officers, or to permit them to separate until the challenges have been made. The court exercised its discretion by permitting them to separate under the usual admonition. In the absence of any showing of prejudice resulting from the separation of the panel until the challenges had been made, we must assume that the court properly exercised its discretion.
3. Defendant filed a motion to quash the panel of 30 jurors for numerous reasons. Paragraph 13 of the motion for new trial complains generally of error in overruling this motion. As the motion for new trial fails to specify in detail and with particularity the grounds or causes of complaint, it cannot be considered. State v. Standifer (Mo. Sup.) 289 S. W. 856.
4. Another assignment in the motion for new trial is that the court erred in refusing to sustain the objection of the defendant before filing his challenges to permit the defendant to have a panel of 40 jurors from which to make the challenges.
By section 4017, Laws 1925, p. 196, the offense charged being punishable by death or imprisonment for life, the state was entitled to six, and the defendant to twelve, peremptory challenges. It is said, however, in the seventeenth paragraph of the motion for new trial, "that the Fifty-Third General Assembly did not keep the proper record or minutes of its proceedings, and the Laws of 1925 were each and all unconstitutional, and especially the Laws of 1925 found on pages 194 to 199 inclusive, approved May 1, 1925." These general averments do not meet the requirements of section 4079, supra, and must be disregarded.
5. The motion for new trial also alleges that the court erred in not sustaining defendant's objection to the introduction of any evidence. This contention is also general, and may not be considered.
6. The evidence for the state tends to show that there was a dance on the evening of September 5, 1925, at the home of Frank Canterbury in St. Francois county, seven or eight miles from Farmington, the county seat. It was attended by about 125 people. About 10:30 p. m., while the dance was in progress, Harve Swinford stepped on Newman (or Curley) Thompson's foot. A quarrel resulted, and Swinford struck Thompson. There was also a disturbance or fight between Charley Morris and the defendant, Elmer Fox, in the house....
To continue reading
Request your trial
- State v. Taylor
- State v. McGee
- State v. McGee
- State v. Quinn