State v. Hurley

• Citation: 251 S.W.2d 617
• Decision Date: 13 October 1952
• Docket Number: No. 43164,No. 1,43164,1
• Parties: STATE v. HURLEY
• Court: United States State Supreme Court of Missouri

Page 617

251 S.W.2d 617

STATE v. HURLEY.

No. 43164.

Supreme Court of Missouri, Division No. 1.

Oct. 13, 1952.

Clayton W. Allen, Rock Port, for appellant.

J. E. Taylor, Atty. Gen., Arthur M. O'Keefe, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was convicted of feloniously operating a motor vehicle while in an intoxicated condition and his punishment fixed at three years imprisonment in the state penitentiary. He has appealed.

Appellant first contends that the information in this case is fatally defective as the defendant was not named in the body of the information. Appellant's name is set forth in the caption of the information and he is designated defendant, as follows: 'State of Missouri, Plaintiff v. John Hurley, Defendant.' The information then purports to state a charge under Section 564.440 RSMo 1949, V.A.M.S., to wit, that 'upon the 22nd day of April, 1951, in the County of Atchison, and the State of Missouri, the defendant did then and there unlawfully and feloniously drive and operate a motor vehicle while in an intoxicated condition * * *.' (Italics ours.) The specific name 'John Hurley', however, does not appear in the body of the information.

Appellant contends that the caption is no part of the information, State v. Freeman, 21 Mo. 481, 483; Kirk v. State, 6 Mo. 469; State v. Blakely, 83 Mo. 359; that an information which fails to charge a crime is fatally defective, State v. Whitaker, 160 Mo. 59, 60 S.W. 1068; and that an information which charges an offense, but does not name the person accused is a nullity, State v. Stern, 4 Mo.App. 385.

Where the offense sought to be charged is sufficiently set forth in form and substance in the body of the information, of course, it may not be held bad by reason of any defect in the caption. State v. Freeman, supra; Kirk v. State, supra; State v. Blakely, supra. The question here does not concern a defective caption, but it is whether the caption may be considered in determining the person referred to by the words 'the defendant' in the body of the information and so aid the information by making certain as to the specific person charged with the offense.

We think the information was entirely sufficient to charge the appellant, who was the person named in the caption, with the offense for which he was prosecuted and convicted and that appellant was not, and could not have been, prejudiced by the failure to set forth appellant's name in the body of the information. The words 'the defendant' in the body of the information must be construed as referring directly to the appellant, who was the defendant named in the caption. An information may properly have a caption wherein the defendant is specifically named. Section 545.270. (All references are to RSMo 1949, V.A.M.S.).

Section 545.030 provides that 'No indictment or information shall be deemed invalid * * * For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor * * * For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits * * *.'

Since appellant was named as defendant in the caption or style of the action, we think it is clear that he was the person referred to by the use of the words 'the defendant' in the body of the information. The person so named as defendant in the caption or style of the action and referred to in the body of the information by the use of the words 'the defendant' was clearly the party charged with the offense stated. Appellant could not have failed to know that he was the person charged. The defect or imperfection could not have tended to prejudice the substantial rights of appellant upon the merits of the action. The party charged was sufficiently designated. Section 545.030; State v. Stokes, 288 Mo. 539, 232 S.W. 106, 111; Marshall v. State, 19 Ariz. 44, 165 P. 313, 314; State v. Sawyer, 233 N.C. 76, 62 S.E.2d 515, 517. The information was otherwise sufficient to charge appellant with the offense for which he was prosecuted and convicted. Section 564.440; State v. Reifsteck, 317 Mo. 268, 295 S.W. 741; State v. Couch, 344 Mo. 78, 124 S.W.2d 1091.

Appellant next contends that the trial court should have appointed counsel for him 'and should have given counsel opportunity and time to prepare the defendant's defense.' Appellant relies upon Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 60, 77 L.Ed. 158, and other cases. In his motion for a new trial defendant contended that the court erred 'because the attorney for the defendant, requested by the Court to advise the defendant in the conduct of the case, was not given time in which to acquaint himself with the charge against the defendant, or with the evidence against him, or to gather such evidence as may have been available in favor of the defendant.' The record presented for review does not expressly show the appointment of counsel and the motion for a new trial does not assign error on account of any failure of the court to appoint counsel for defendant.

The record proper shows that, on May 28, 1951, the defendant appeared in person with his sister and announced that he understood the charge against him and that he would represent himself. At that time the trial court entered an order setting the cause for trial on August 22, 1951. The bill of exceptions shows that on August 22, 1951, defendant personally announced that he waived formal arraignment and entered a plea of not guilty. Defendant further announced that he was ready for trial. Before the jury was sworn, the court said: 'Mr. Hurley, the defendant here, has announced that he would be his own lawyer and when Mr. Savage (an attorney) come in I asked him if he would sit here and sort of guide him along in anything he might need, so in fairness to Mr. Hurley I want to make that statement, and I say to Mr. Hurley now I asked Mr. Savage to do that although you wanted to try it yourself.' Defendant answered, 'That is all right, but I still don't think I needed one.' No request was made at any time for the appointment of counsel. See Section 545.820. Counsel, when appointed, at no time asked to be given time to prepare for trial, but he cross-examined the witnesses and represented defendant in the trial and, thereafter, filed the motion for a new trial.

Appellant may not now complain of the court's failure to appoint counsel. Counsel was in fact appointed, but no request was made therefor and the matter of failure to appoint counsel was not raised in the motion for a new trial. Secs. 545.820 and 547.030. In the case of United States v. Dennis, 2 Cir., 183 F.2d 201, 234, Judge L. Hand pointed out that 'one has an absolute privilege of doing without any attorney, if one wishes'. In any case, upon the record presented it cannot be said that there was any 'denial of the assistance of counsel,' nor can it be said that defendant was 'not accorded the right of counsel.' The assignment is overruled. State v. Hamilton, 337 Mo. 460, 85 S.W.2d 35, 41; State v. Moore, 121 Mo. 514, 521, 26 S.W. 345.

Appellant next contends that there was no substantial evidence to sustain the conviction and that the court should have directed a verdict for defendant, as requested, at the close of all the evidence. Appellant further says that the state's principal witness, Bill Jones, made conflicting statements and was impeached by proof of prior convictions.

The state's evidence tended to show that at about 9 p. m. on Sunday evening, April 22, 1951, defendant was driving a 1937 Ford automobile in a westwardly direction on highway No. 4 in Atchison County, Missouri, at a point some six or seven miles east of Tarkio, Missouri. He was accompanied by Bill Jones, the owner of the automobile. Jones testified that defendant was driving. The Ford automobile collided headon with a 1937 Chevrolet automobile owned and operated by Earl Vogler, which was being operated eastwardly upon the same highway. Mr. Vogler was accompanied by his wife, his son and his daughter. The headlights of both automobiles were burning and, as the automobiles approached each other, the Ford automobile was being operated in the center of the highway. The Chevrolet was slowed down and pulled over to its right, to the south side of the highway, almost to a ditch, where the headon collision occurred. When the automobiles came to rest, the Chevrolet was in the ditch on the south side of the road, still headed east, and the Ford had turned over on its right side and was headed southeastwardly, with the rear portion of the automobile extending into and obstructing the highway. The Ford automobile was badly damaged by the collision. The testimony referred to it as being 'torn up.' Bill Jones, the owner of the Ford, received cuts and lacerations on his head and face, his lip was cut through and his chin injured. Mrs. Vogler received severe injuries, including a fractured pelvis.

When the defendant first got out of the Ford automobile immediately after the wreck, a witness who observed his condition testified that 'he appeared to be drunk.' The same witness testified further: 'Q. Will you say now that this...