State v. Jennings

• Decision Date: 20 December 1930
• Docket Number: No. 30572.,30572.
• Parties: THE STATE v. LEONARD JENNINGS, Appellant.
• Court: Missouri Supreme Court

34 S.W.2d 50

THE STATE v. LEONARD JENNINGS, Appellant.

No. 30572.

Supreme Court of Missouri, Division Two.

December 20, 1930.

Appeal from Boone Circuit Court. — Hon. A.W. Walker, Special Judge.

REVERSED AND REMANDED.

W.C. McCluskey and Harris, Price & Alexander for appellant.

(1) The provisions of Sec. 3849, R.S. 1919, that all informations shall be filed by the prosecuting attorney and be verified by his oath or by the oath of some person competent to testify in the case, and that all informations shall be filed by the prosecuting attorney, are mandatory. State v. Sykes, 285 Mo. 25; State v. Lawhorn, 250 Mo. 293; State v. Anderson, 240 S.W. 846; State v. Yates, 17 S.W. (2d) 577; State v. Kelm, 79 Mo. 115. (2) After permitting the prosecuting attorney on the day of trial to indorse upon the information the names of seven additional witnesses to be used in the trial, defendant's application for a continuance should have been sustained; at least, defendant should have been given time to make the preparation necessary on account of the indorsement of such names. State v. Roy, 83 Mo. 268; State v. Walton, 255 Mo. 232; State v. Pearson, 270 S.W. 242. (3) Sec. 4078, R.S. 1919, provides that a new trial may be granted for newly-discovered evidence, and where motion for new trial is supported by affidavit of defendant and other requisites relative to newly-discovered evidence observed, a new trial should be granted on this ground. State v. Curtis, 77 Mo. 267; State v. Murray, 91 Mo. 95; State v. Bailey, 94 Mo. 311; State v. Hutchinson, 289 S.W. 969; State v. McKenzie, 177 Mo. 716; State v. Estes and Johnson, 209 Mo. 306. (4) It being apparent to the court that defendant was relying upon his application for a change of venue and that he was not prepared for trial, it was error to force him into an immediate trial. State v. Lambert, 262 S.W. 58.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) This assignment charges the trial court with error in permitting the State to indorse the names of seven witnesses upon the information on the day of the trial and after change of venue had been heard, ruled on and plea of not guilty had been entered. This action of the trial court was not an error. Secs. 3849, 3889, R.S. 1919; State v. Pinson, 291 Mo. 335. It was discretionary with the court, and unless the record exhibits an abuse of that discretion, this court will not interfere. State v. Frost, 289 S.W. 898; State v. Hewitt, 259 S.W. 781. (2) The verification of an information may be made at any time. Such amendments are permitted at any time during the trial in the discretion of the trial court. State v. Riddle, 23 S.W. (2d) 179; State v. Thomas, 1 S.W. (2d) 157; Secs. 3853, 3908, R.S. 1919. The verification is no part of the information and the amendment in no way affected the substance of the information. State v. Brown, 181 Mo. 232; State v. Speyer, 194 Mo. 463. (3) The trial court did not err in refusing defendant's motion and application for a continuance based on the facts that there was insufficient time to meet the testimony of the additional witnesses whose names the court permitted the State to indorse on the information just before trial. The use of witnesses by the State, that were not indorsed on the information, is discretionary with the trial court. Unless it appears that that discretion has been abused the Supreme Court will not interfere. State v. Van Valkenburgh, 285 S.W. 978; State v. Taylor, 8 S.W. (2d) 29. (4) The trial court refused to grant a new trial upon an affidavit alleging newly discovered evidence. The evidence was not such that its admission would have changed the verdict.

DAVIS, C.

In an information filed in the Circuit Court of Boone County by the prosecuting attorney, defendant was charged with burglary and larceny. The verdict of the jury found defendant guilty of burglary, and assessed his punishment at imprisonment in the penitentiary for a term of two years; and further found him guilty of grand larceny, and assessed his punishment therefor at imprisonment in the penitentiary for two years. From the judgment entered on the verdict defendant appealed.

The evidence for the State warrants the finding that, on February 5, 1929, G.A. Laxton and his son, Clarence, a copartnership under the firm name of Laxton & Son, operated a hardware store in the town of Sturgeon, Boone County. Defendant resided with his family some few miles from Sturgeon, but the afternoon of February 4th he spent in Sturgeon, cating supper in a restaurant there. That evening he was with Pete Powers, and in his company and that of others, defendant spent the evening listening to music at a friend's home. A man by the name of Delaney, the owner of a car, residing a few miles from Sturgeon, was also present. Around eleven or eleven-thirty the night of the fourth, they decided to go home, defendant intending to go with Delaney. However, it was found that the lights on Delaney's car were out of order, and some one departed to borrow a lantern to hang on the front of the car. At that time Claude Powers, for whom Pete Powers was waiting, drove up in a Ford, accompanied by Conklin, and addressed defendant. Some one suggested whiskey, and it was decided that they proceed to obtain it. Thereupon defendant and Pete Powers boarded Claud Powers' Ford car and Claud drove them, together with Conklin, to Clark, where defendant attempted unsuccessfully to obtain whiskey. Claud then drove to Renick, where defendant was able to obtain whiskey. After drinking it, they drove to Moberly, alighted at a restaurant, partook of food, and procured whiskey and drank it. Claud Powers then drove them from Moberly through Renick and Clark to Sturgeon, where they arrived between four and five o'clock A.M. on February 5th. Claud and Pete Powers and defendant, on stopping the car four or five blocks from Laxton's store, alighted and roamed about town. On observing Laxton's store, the thought seemed to strike defendant that whiskey was to be found therein and he tried the door, finding it locked. He had an empty pint bottle in his hand, and with whiskey as the lure, he held or had the screen held back, whereupon he threw the bottle through the glass of the door, making a sufficient opening for entry into said store. Thereupon defendant and Claude and Pete Powers entered the store and searched for whiskey. Being unable to discover any, defendant suggested that they take something for their trouble. He tooks guns, pocket knives, flash lights and gloves of the value of $172 or more, and he and Claud and Pete Powers carried them to the car. They drove away, going to the homes of the Powers boys or their kin, where defendant either gave guns to the fathers or kin of the Powers boys or requested that they keep the guns for him. Late the afternoon of the fifth, defendant arrived home. The evidence tends to show that among other things taken from Laxton's store was a hammer, which was found in defendant's smokehouse in a rat hole almost covered with straw, except that the handle was observable.

Defendant's evidence tends to show that he met the Powers boys and Conklin as stated at Sturgeon, and that around or before twelve o'clock on the night of February 4th, he boarded Claud Powers' Ford car, and Claud, with Pete Powers, Conklin and defendant in the car, drove to Clark, Renick and Moberly, obtaining whiskey on the way. On their return, Claud stopped at Renick, defendant alighting from the car and going to the Marshall home, where he stayed the remainder of the night. He arose around six or six-thirty A.M. on the fifth, and, after eating breakfast, proceeded to Renick to catch a car home, when he again met Claud and Pete Powers and Conklin in the car, who said they would take him home. Instead of going home, they turned off the State highway from a quarter to a half mile east of Renick, and went to the home of Pete Powers' father and then to the home of Claud Powers' father. Defendant denied that he was present during the burglary, or that he entered the store, or that he gave a gun to any one. He said he first observed guns in the car around Clark, on the initial trip from Sturgeon to Moberly. Defendant's witnesses testified that Claud Powers' reputation for truth and veracity was bad, and some of the same witnesses stated that defendant's reputation was also bad. Other evidence will be stated in the opinion.

Defendant does not question the sufficiency of the evidence, but raises procedural errors, which we proceed to consider.

I. Defendant charges that, under Section 3849, Revised Statutes 1919, the information is fatally defective because (a) it was not verified by the prosecuting attorney or by any person competent to testify in the case; (b) it was filed with the circuit clerk by the prosecuting attorney's stenographer.

Before the jury were examined on their voir dire, selected and sworn, defendant filed a motion to quash the information and suppress the evidence. The court heard evidence in relation to the matter. The jurat of the circuit clerk was Information: not affixed to the information at the time said Jurat of Clerk. motion was filed. The said evidence tended to show that the prosecuting attorney drafted the information and after signing it in two places, handed it to his stenographer to be lodged with the circuit clerk, which was accordingly done. The stenographer testified that she transcribed the information and the prosecuting attorney signed it prior to its lodgment with the clerk. The circuit clerk testified that the stenographer lodged informations with him and that later the prosecuting attorney appeared and made affidavit to them, and then he put them on his book and filed them; that it was his general practice to lay the informations aside and refuse to file them until the prosecuting attorney had made an affidavit to them; that the information, as shown by his...