State v. Lonon

• Citation: 56 S.W.2d 378,331 Mo. 591
• Parties: The State v. Tromo Lonon, Appellant
• Decision Date: 14 December 1932
• Court: United States State Supreme Court of Missouri

56 S.W.2d 378

331 Mo. 591

The State v. Tromo Lonon, Appellant

Supreme Court of Missouri

December 14, 1932

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge.

Affirmed.

McKay & Peal for appellant.

(1) A nolle prosequi, or dismissal of a criminal charge is a discharge of the defendant on such charge, and being a discharge it is a termination of the case. It is like a nonsuit or discontinuance of a civil suit, and leaves the matter in the same condition it was in before the commencement of the prosecution, and the same may not thereafter, on motion of the State, be restored to the docket for trial. 16 C. J. secs. 778, 779, p. 432; Dudley v State, 55 W.Va. 472, 47 S.E. 285; State v Main, 31 Conn. 572; State v. Shilling, 10 Iowa 106; Jones v. Com., 114 Ky. 599, 71 S.W. 643; Com. v. Smith, 140 Ky. 580, 131 S.W. 391; Willingham v. State, 14 Ala. 539. The case having been unconditionally dismissed ended the prosecution of the case, and the jurisdiction of the court over the person of defendant and of the information ceased. State v. Patterson, 73 Mo. 701; State v. Goddard, 162 Mo. 222; State v. Normile, 108 Mo. 122. (2) The court erred in refusing to grant appellant a continuance. One charged with crime is entitled to a fair opportunity to prepare for trial. State v. Lambert, 262 S.W. 58; State v. Peters, 167 S.W. 520. (3) The court erred in the admission of evidence on behalf of the State. The defendant, in his motion for new trial, sets out that the court erred in admitting incompetent, irrelevant and immaterial evidence on behalf of the State, as is fully set out in Exhibit A thereto attached and made a part of his motion. Exhibit A sets out specifically the question, objection, the ruling of the court, defendant's exception and the answer as well as the name of the witness testifying. Mr. McKay: Exception. If the relevancy or competency of evidence is so apparent, which may be prejudicial to the defendant, it should not be admitted, even with the understanding that, unless other testimony is produced showing its competency, it may be excluded. State v. Thomas, 99 Mo. 235; State v. Patton, 255 Mo. 245; State v. Newcomb, 220 Mo. 54. (4) The court erred in permitting the State to cross-examine the defendant upon matters which did not traverse his examination in chief. State v. Sharp, 233 Mo. 269; State v. Mitchell, 229 Mo. 683; State v. Wilson, 223 Mo. 173. The defendant had the right to refuse to testify to his conviction and forcing him so to do over his objection thereto violated his right under the Constitution of Missouri. Sec. 23, Art. II of the Const. of Mo.; Ex parte Gauss, 223 Mo. 227; Ex parte January, 295 Mo. 653.

Stratton Shartel, Attorney-General, for respondent; Lieutellus Cunningham of counsel.

(1) The information is in usual form and charges every element of the crime of robbery in the first degree with a deadly weapon and is not duplicitous. State v. Kennedy, 154 Mo. 268; State v. Whitley, 36 S.W.2d 937; State v. Craft, 23 S.W.2d 183; State v. Faudi, 11 S.W.2d 1014. (a) It is not shown in what particular the information was amended by interlineation. Error will not be presumed but must be shown. Informations may be amended as to substantive matters before the trial and as to matters of form and variance before and during the trial. It was amended before the trial. State v. Riddle, 23 S.W.2d 179; Sec. 3508, R. S. 1929. (2) The verdict is in the approved form in such cases and is sufficient in every respect. State v. Faudi, 11 S.W.2d 1014. (3) There is no showing that the defendant offered any evidence on his plea to the jurisdiction of the court. Even if it would be error to exclude such evidence if offered, which we do not concede, the court could not be convicted of error in this case. Allegations in a motion for new trial do not prove themselves. State v. Stogsdill, 23 S.W.2d 22, 324 Mo. 105; State v. Adams, 300 S.W. 738, 318 Mo. 712. The court did not err in setting aside the order of dismissal as to the defendant made on July 24, 1931, during the same term on August 7, 1931, and reinstating the case against this defendant. Even an order for a change of venue, which has the effect of divesting the court of all jurisdiction may be set aside during the term at which it was made. State v. Webb, 74 Mo. 333; State v. Gabriel, 88 Mo. 631. Appellant's co-defendants, Roy E. Lonon and Frank Webb, had applied for and been granted a change of venue from Honorable John E. Duncan, Judge, and Honorable Will H. D. Green, Judge of the 20th Judicial Circuit, had been called in to try their cases. This operated as a severance as to appellant. State v. Greer, 12 S.W.2d 87; State v. Schooley, 14 S.W.2d 632. The court has full control of its orders and judgments during the term at which they are made, and may, upon sufficient cause being shown, in the exercise of sound discretion, amend or vacate them. 34 C. J. 207, sec. 436; Marsala v. Marsala, 288 Mo. 504; Reid v. Moulton, 210 S.W. 34; Shuck v. Lawton, 249 Mo. 168; Aull v. Trust Co., 149 Mo. 1; Eddie v. Eddie, 138 Mo. 599; McGurry v. Wall, 122 Mo. 614; State v. Webb, 74 Mo. 333; State v. Gartrell, 171 Mo. 489. Full jurisdiction attached to the Pemiscot County Circuit Court upon the order for a change of venue being made. State v. Thomas, 301 Mo. 613. If appellant's objections to setting aside the order of dismissal and reinstating the case against him be considered a plea in abatement, then he waived it by waiving arraignment and entering a plea of not guilty after the court overruled the plea in abatement. State v. Jamerson, 252 S.W. 686; State v. Gieseke, 209 Mo. 341; Ex parte McLaughlin, 210 Mo. 657; State v. Ferguson, 278 Mo. 129; State v. Dooms, 280 Mo. 94; State v. Langford, 240 S.W. 169; State v. Jack, 209 S.W. 890; State v. Rozell, 225 S.W. 931. It has been properly held that where an amended information has been filed and afterwards withdrawn and the defendant tried on the original information, no error was committed. State v. Harmon, 296 S.W. 397, 317 Mo. 358.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

Tromo Lonon, appellant in this case; Roy E. Lonon and Frank Reed were jointly charged, by an information filed in the Circuit Court of New Madrid County, Missouri, with the crime of robbery in the first degree, by means of a dangerous and deadly weapon. An application for a change of venue was granted and the cause transferred to Pemiscot County, Missouri.

On July 24, 1931, when the cause was called for trial, the prosecuting attorney, in open court, dismissed the case as to appellant. The case was thereupon continued to August 4, 1931. At that time Roy E. Lonon and Frank Reed filed an application for a change of venue against Judge John E. Duncan, which application was granted. A judge from a neighboring circuit was then called to try the case. On August 7, 1931, on application of the prosecuting attorney made to the Honorable Judge Duncan, the regular judge of the circuit, the order of the court, dismissing the case as to Tromo Lonon, appellant in this case, was set aside and the case reinstated and an alias capias issued for the arrest of appellant. The order reinstating the case was made at the same term of court and by the same judge as the order of dismissal.

Defendant, by his counsel, filed a plea to the jurisdiction of the court upon the ground that the case could not be legally reinstated. This plea was overruled by the court. Appellant thereupon entered a plea of not guilty. A trial before a jury resulted in a conviction of defendant as charged. The jury fixed the punishment at imprisonment in the State Penitentiary for a term of twenty years. Defendant timely filed a motion for a new trial, which the court overruled, and defendant was sentenced. From this judgment an appeal was granted to this court. We find a fair and sufficient statement of the case in respondent's brief and adopt it as our own. It reads:

"The evidence for the State tended to prove that on the night of April 15, 1931, J. L. Bradshaw and his wife were traveling in a Ford coupe over United States Highway 61 from Blythesville Arkansas, to St. Louis, Missouri. As they passed the White City Park near Hayti, Missouri, they noticed three men, who were afterwards identified as Tromo Lonon, Roy E. Lonon and Frank Reed, in a Chrysler Sedan which began to follow them. They drove faster when they noticed the men were trying to overtake them, but the sedan caught up with them about four and one-half or five miles from Portageville, Missouri sounded a siren, and one of the men, afterwards identified as Roy E. Lonon and sometimes referred to as Weiner, had a pistol in his hand and said he was the law and ordered them to stop. Mr. Bradshaw told him to show his authority and when he failed to do so, threw the Ford into second gear and sped up. The men in the Chrysler continued to chase them and again caught up with them in about a mile and attempted to crowd them off the road. Mr. Bradshaw pulled the Ford into the middle of the road and again escaped. Mr. and Mrs. Bradshaw fearing a robbery, decided to stop in town, and he moved his money, about forty-five dollars, from his pants pocket to his left vest pocket. When they reached Portageville, in New Madrid County, Missouri, and got to where there were houses on each side of the road, Mr. Bradshaw pulled out to the right of the road and stopped. He left his motor running. The Chrysler Sedan ran in ahead of them and stopped about fifteen feet in front of the Ford. The three men got out of the Chrysler and came back to where Mr. and Mrs. Bradshaw were seated in the Ford. Roy E. Lonon had a pistol in his hand and pointed it toward Mr. Bradshaw and took the forty-five dollars, the property of Mr. Bradshaw, out of...