State v. Kehoe

• Decision Date: 13 March 1920
• Docket Number: No. 21880.,21880.
• Citation: State v. Kehoe, 220 S.W. 961 (Mo. 1920)
• Parties: STATE v. KEHOE.
• Court: Missouri Supreme Court

220 S.W. 961

STATE v. KEHOE.

No. 21880.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

William Kehoe was convicted of grand larceny, and he appeals. Affirmed.

John It. McCarthy, of St. Louis, for appellant.

Frank W. McAllister, Atty. Gen., and George V. Berry, Asst. Atty. Gen., for the State.

WHITE, C.

The assistant circuit attorney of the city of St. Louis filed information in the circuit court of that city charging the defendant and one Ray Hake with the crime of grand larceny. A severance was granted, and the state proceeded with the separate trial of William Kehoe, which resulted in a verdict of guilty, assessing his punishment at imprisonment in the penitentiary for a term of two years. From the judgment entered in pursuance of the verdict the defendant appealed.

The defendant was charged with stealing, on the 26th of June, 1918, from one Arthur Bick, at 505 North Charming avenue, St. Louis, a Hudson Super-Six automobile of the value of $1,000. The evidence shows that Arthur Bick was conducting a taxicab company, and had in his employ one Clayton King, a chauffeur who, at the time mentioned, was driving the automobile. Bick stated that he gave no one else authority to use the automobile. King, in his employment, on that day drove the car to Union Station for the purpose of intercepting persons who were going away on the train. He parked the car at Nineteenth and Market streets, and went into the station, transacted his business, came out, and found the car gone. Immediately after he learned the car was gone Bick reported his loss to the police and began efforts to locate it. The next day, September 27, 1918, Sam Wallace, city marshal and chief of police of Mexico, Mo., heard of the loss of Dick's machine and received information that such a machine had been heard of in the neighbor. hood. With another man he set out to run it down. After a chase of about 12 miles he overtook the machine. He described his speed by saying that he was "loafing along at about 60 miles an hour." He ran in ahead of the automobile of which he was in pursuit, and stopped so suddenly that he and his companion were thrown out of his machine, and his companion rendered insensible. He intercepted Bick's machine, and with drawn weapon arrested two men occupying it, the men being the defendants Kehoe and Ray Hake. He took the machine and the men back to Mexico, and the next day Bick appeared, identified his machine, and took it away. Hake was operating the machine at the time of the arrest. No witness saw Kehoe operating it.

Bick swore the machine which he recovered in Mexico was the same machine of which his chauffeur, King, was in custody when it was lost. He identified it by the number.

I. The principal error complained of and argued by the appellant here was the action of the trial court in allowing the names of two witnesses to be indorsed on the information after the trial was begun. The information was filed August 31, 1918, and indorsed on the back, under the heading "Witnesses," were the following: "Arthur Bick, 3430 Locust Street, Offr. Barney Griffin, Hdqts." On September 25th, by order of the court, the following were indorsed: "Clayton King, 5385a Ridge avenue; Sam Wallace, Chief of Police, Mexico City." The trial was begun September 24, 1918. After some testimony was taken the court adjourned until the following morning, when the state called for witness Clayton King. Thereupon Mr. McCarthy, attorney for defendant, objected to Clayton King as a witness on the ground that his name was not indorsed on the information, claiming that he was surprised and not prepared to meet the testimony of the witness. The court then permitted the names of the two witnesses King and Wallace to be indorsed on the information, and on the suggestion of the state's attorney the case was adjourned until Friday, September 27th; on Friday, the 27th, adjourned until Saturday, September 28th.

In the interval, on the 26th of September, the defendant's attorney filed a motion to quash because the court had caused the names of the two witnesses mentioned to be indorsed on the information, alleging that the names of the witnesses were well known to the state at the time of filing the information, and by the exercise of due diligence the state might have known that the witnesses were material for the purpose of proving venue and the corpus delicti. This motion was by the court overruled. Afterwards, on the 27th of September, defendant filed his motion, which he terms a "motion for mistrial." This motion, supported by an affidavit of defendant's attorney, Mr. McCarthy, stated that after the jury had been impaneled, the jury sworn and the trial begun, and the defendant placed in jeopardy, the state had caused the names of King and Wallace to be indorsed on the back of the information; that affiant believed those witnesses were to be used in the attempt by the state to establish venue and the corpus delicti; that the suddenness with which the names had been added to the information deprived the defendant of an adequate opportunity to impeach their credibility or interrogate the jury with reference to their acquaintance with the said witnesses. The motion asked the court to declare a mistrial and continue the case to the next term of court. This motion was taken up on the 28th and overruled. The trial proceeded. Wallace and King, were sworn and testified in the case.

The failure to indorse the names of witnesses for the state upon an information is not of itself sufficient cause for quashing the information nor for a continuance. Section 5097, R. S. 1909. This court considered the smatter at length in the case of State v. Barrington, 198 Mo. 23, 95 S. W. 235, and after reviewing many cases laid down certain rules for the application of the statute (198 Mo. loc. cit. 70, 95 S. W. 250), and, among other things, it is there said in regard to a failure to indorse the names of certain witnesses on an indictment:

First. A motion to quash would be sustained "unless the prosecuting attorney offers to supply such omission; then the defendant should have a reasonable time after such omission has been supplied to prepare his defense."

Second. "If the state should * * * purposely refrain from indorsing the names of material witnesses on the back of the indictment, with a view of taking an undue advantage of the defendant, * * * the court would be warranted in * * * quashing the indictment."

It was held further that a defendant could not complain of prejudicial error if he had sufficient notice that the additional witnesses would be introduced at the trial.

In the case of State v. Bailey, 190 Mo. 257, loc. cit. 278, 279, 88 S. W. 733, a list of witnesses not indorsed on the information was furnished to counsel for defendant before the trial, the witnesses were easily accessible, and defendant did not ask for a continuance. It was not error to permit them to testify.

In a case where such witnesses had been summoned before a justice of the peace in A preliminary examination and before the coroner, and had been subpoenaed by the state for the trial of the cause, and the defendant was duly advised of these facts, the trial court properly refused to quash an information on the ground that the names of such witnesses were not indorsed on the information. State v. Jeffries, 210 Mo. 302, loc. cit. 322, 109 S. W. 614, 14 Ann. Cas. 524.

Where the prosecuting attorney made a specific showing that he did not know he would call the witnesses whose names were not indorsed on the information and did not purposely withhold such names from the defendant's attorney, it was held no error to permit the witnesses to testify. State v. Walton, 255 Mo. 232, loc. cit. 243, 164 S. W. 211.

In State v. Wilson, 223 Mo. 173, loc. cit. 187, 122 S. W. 671, it was held not error to fail to indorse the names of witnesses upon the information where it did not appear that the counsel for...