State v. Hampton
| Decision Date | 07 June 1943 |
| Docket Number | 38429 |
| Parties | STATE v. HAMPTON |
| Court | Missouri Supreme Court |
Omer Brown, of Ozark, and John M. Bragg, of Ava, for appellant.
Roy McKittrick, Atty. Gen., and W. O. Jackson, Jr., Asst. Atty Gen., for respondent.
WESTHUES, Commissioner.
Appellant was convicted of manslaughter and sentenced to imprisonment in the penitentiary for a term of three years. He appealed. The homicide was committed in Christian county, Missouri. Appellant was granted a change of venue and the case was transferred to and tried in Douglas county.
Appellant filed no brief in this court. In his motion for new trial a number of questions were preserved for our review. We will attempt to dispose of these in the order in which the questions arose in the trial of the case. Appellant in his motion alleged that he was not accorded a preliminary hearing on the charge filed against him in the circuit court, and therefore such preliminary hearing was a nullity and the circuit court acquired no jurisdiction of the case. The record does not sustain the contention. The complaint filed in the justice court was substantially the same as the information upon which appellant was tried. It charged appellant with murder in the second degree and Leonard Hampton as being an accessory. The transcript of the justice showed that the case was continued once because of the absence of the attorney for the defendant. It further showed that later a preliminary hearing was held and both defendants bound over to the circuit court. An information was filed in the circuit court of Christian county, Missouri, against both defendants. The record further showed that on February 10, 1942, appellant, Oral Hampton, was granted a change of venue and the case was transferred to Douglas country. On April 14, 1942, appellant filed an application for a continuance in the circuit court of Douglas county. The application was granted and the cause continued to the next regular term. When the case was called for trial at the September term appellant filed a plea in abatement in which he alleged that no preliminary hearing had ever been held. What we have said above disposes of this point. Other allegations in the plea in abatement were that the case was wrongfully and illegally transferred to the Douglas County Circuit Court as there was no information filed against the defendant at the time the application for a change of venue was filed; that the information did not show it had ever been signed by any one and no witnesses were endorsed thereon. Appellant, by filing a motion for continuance in the court to which the cause was transferred, waived any irregularities in the transfer. It is necessary, however, that an information be on file before a circuit court has jurisdiction to try a case. The record disclosed that the information was signed and sworn to before the circuit clerk of Christian county on May 26, 1941. The application for a change of venue was granted on February 10, 1942. The circuit clerk certified that the papers on file in the Douglas County Circuit Court were the original files of the case in the Christian County Circuit Court before the change of venue was granted. We think the record fully shows that an information had been filed. In the plea in abatement appellant questioned the sufficiency of the transcript which the circuit clerk of Christian county had transmitted to Douglas county. The trial judge thereupon ordered all of the files pertaining to the case on record in Christian county to be brought to Douglas county and there lodged with the circuit clerk. The circuit clerk of Christian county certified thereto in Douglas county. We have examined the record and it discloses that all proceedings necessary to vest the circuit court of Douglas county with jurisdiction of the case were duly taken. A complaint was filed in the justice court, a preliminary hearing had, the defendant bound over to the circuit court, an information filed, a change of venue applied for and granted and the case transferred to Douglas county. This was sufficient. Any irregularities were waived by appellant when he applied for and was granted a continuance in the Douglas County Circuit Court. See State v. Lonon, 331 Mo.591, 56 S.W.2d 378, 382, loc. cit. 383 (1-3). The plea in abatement was properly overruled.
Next appellant assigned error because the trial court denied a continuance at the 1942, September term, after the original papers had been lodged in that court, to give him time to examine the same. There is no merit in this contention. The original papers were at all times on file in Christian county and were open to inspection. A transcript thereof, or at least a partial transcript, was open to inspection in the Douglas County Circuit Court. Appellant did not question the sufficiency of this transcript when he applied for and was granted a continuance at the previous term. We fail to see how appellant was prejudiced by the order refusing him a continuance. Again appellant states in his motion that the transcript of the evidence of the preliminary hearing was not signed by the witnesses who testified thereat and also that it was not filed. When this question arose the trial court asked for the transcript of the evidence and it was immediately presented. No showing was made that the justice of the peace had not deposited it with the circuit clerk of Christian county, and the record does not disclose that appellant made any inquiry with reference to this transcript until the morning of the trial of the case. He had been granted two continuances. The trial court properly denied the last request because of lack of diligence on the part of appellant. A continuance should only be granted for good cause. State v. Salts, 263 Mo. 304, 172 S.W. 373, loc. cit. 375 (2).
Error was assigned to the action of the trial court in permitting the prosecuting attorney to endorse the names of witnesses on the information on the day of the trial. The record disclosed that the prosecuting attorney had given appellant's attorney a list of these witnesses five days before the trial. No further showing was made. Appellant made no point that five days' notice was not sufficient. The action of the trial court was proper. Again appellant assigned error because the trial court overruled his motion to dismiss. This motion was based on the ground that no transcript of the evidence taken at the preliminary hearing was filed as required by section 3879, Mo.Rev.St.Ann. This point must be ruled against appellant. The same question was reviewed by this court in State v. Banton, 342 Mo. 45, 111 S.W.2d 516, loc. cit. 517 (1-3). The justice of the peace bound appellant over to the circuit court and fixed the amount of bail. The statute says that the transcript of the evidence shall be delivered to the clerk of the court in which the offense is cognizable. As stated above there was no affirmative showing in this case that the justice of the peace failed to do this. Appellant did not question the correctness of the transcript or its authenticity. Under the circumstances we cannot overturn the ruling of the trial court.
Appellant filed a motion to quash the information. The information is a part of the record proper so the question of its sufficiency is before us for review. We have carefully examined the information and find that it charged appellant with murder in the second degree, and Leonard Hampton as being an accessory. The charge included manslaughter within its terms. This is a lesser offense and is the offense of which appellant was convicted. Appellant in his motion alleged that the information charged two separate offenses. It is permissible where two persons are charged with homicide, as in this case, to charge the one with the actual commitment and the other as being an accessory. Mo.Rev.St.Ann. § 3942. Section 4839 of the same statutes makes a person who shall be an...
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