State v. Martin

• Decision Date: 09 February 1948
• Docket Number: 40652
• Citation: 208 S.W.2d 203,357 Mo. 368
• Parties: State v. Maxey Raymond Martin, Appellant
• Court: Missouri Supreme Court

208 S.W.2d 203

357 Mo. 368

State v. Maxey Raymond Martin, Appellant

No. 40652

Supreme Court of Missouri

February 9, 1948

Appeal from Greene Circuit Court; Hon. Hiram McLaughlin Judge.

Affirmed.

E C. Hamlin for appellant.

(1) Information cannot be amended on trial if it involves a matter of substance; or charge offense different from that charged in the original information. Sec. 3898, R.S. 1939; State v. Riddle, 23 S.W.2d 179; State v Wright, 95 S.W.2d 1159. (2) Evidence illegally obtained is not admissible, and therefore it was error to admit the evidence of state witnesses Cleve Pursley and Mack McClanahan over the objections of the defendant. There had not been an lawful arrest at the time of the search. State v. Morice, 79 S.W.2d 741; State v. McBride, 37 S.W.2d 423; State v. Owens, 259 S.W. 102; 2 R.C.L., p. 467, sec. 25; State v. Park, 16 S.W.2d 30. (3) The evidence offered by the state was all circumstantial evidence, and no direct evidence that the defendant had stolen the rings. Instruction number one given by the state was a misdirection of law given to the jury, and an instruction on circumstantial evidence should have been given in this case; as the state relied solely upon circumstantial evidence for a conviction. State v. Story, 274 S.W. 54; State v. Shepard, 67 S.W.2d 91; State v. Seroski, 270 S.W. 369; State v. Lyle, 246 S.W. 883; State v. Bobbitt, 215 Mo. 10. (4) Defendant's motion to dismiss at the close of state case, for the reason there was a fatal variance between the proof offered by the state and the charge alleged in the information, as to the value of the rings and the ownership of the rings, also the proof offered by the state shows that the rings, if stolen, were stolen from a building or dwelling house and not from the person. State v. Wright, 95 S.W.2d 1159; State v. Long, 213 S.W. 436; State v. English, 67 Mo. 136; State v. Stewart, 63 S.W.2d 210. Information should have charged an offense of larceny from dwelling house. State v. Flowers, 278 S.W. 1042. (5) It is elementary that a criminal intent is the principal element of the offense of larceny, and the information should so state the intent, and that it was against the owners will, and without his consent, and that the offender intended to convert the property to his own use. The amended information does not contain these substantive allegations essential for a valid information charging grand larceny. State v. Gray, 37 Mo. 464; State v. Lawler, 220 Mo. 26; State v. Claybaugh, 138 Mo.App. 360; State v. Lasky, 133 S.W.2d 334; State v. Patterosn, 149 S.W.2d 332.

J. E. Taylor, Attorney General, and John R. Baty, Assistant Attorney General, for respondent.

(1) The amended information is sufficient in form and substance and fully complies with the statute. Sec. 4456, R.S. 1939; State v. Bloomer, 231 S.W. 568; State v. Hodges, 234 S.W. 789. (2) Appellant was properly given allocution, and the judgment of the court was responsive to the verdict of the jury and the evidence. (3) The verdict is sufficient in form and substance and fully complies with the law and the evidence in every respect. Secs. 4456, 4457, R.S. 1939; State v. Darby, 165 S.W.2d 419. (4) The court did not err in permitting the state to file the amended information. Sec. 3898, R.S. 1939; State v. Long, 324 Mo. 205, 22 S.W.2d 809; State v. McPhearson, 92 S.W.2d 129; State v. Cain, 31 S.W.2d 559. (5) The court did not err in admitting the testimony of witnesses Cleve Pursley and Mack McClanahan. State v. Owens, 302 Mo. 348, 259 S.W. 100; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State v. King, 331 Mo. 268, 53 S.W.2d 252, 188 A.L.R. 340; Sec. 3959, R.S. 1939. (6) The court did not err in failing to instruct the jury on circumstantial evidence. State v. Burns, 268 S.W. 79; State v. Crawford, 289 S.W. 961; State v. Neal, 350 Mo. 1002, 169 S.W.2d 686; State v. Lyle, 296 Mo. 427, 246 S.W. 883; 23 C.J.S. 813. (7) The court did not err in overruling defendant's motion to dismiss at the close of the state's evidence. Secs. 3943, 3951, R.S. 1939; State v. Nicoletti, 344 Mo. 86, 125 S.W.2d 33; State v. Teague, 33 S.W.2d 907; State v. Nichols, 130 S.W.2d 485; State v. Lawler, 220 Mo. 26, 119 S.W. 639. (8) Appellant's Assignment of Error No. 4 of his motion for new trial is too general in nature and does not present anything for review. Sec. 4125, R.S. 1939; State v. Sagerser, 84 S.W.2d 918. (9) Assignment of Error No. 7 of appellant's motion for new trial not being brought forward in appellant's brief, preserves nothing for review and is, therefore, waived. State v. Mason, 339 Mo. 874, 98 S.W.2d 574; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Davit, 343 Mo. 1151, 125 S.W.2d 47.

OPINION

Ellison, J.

The appellant was convicted of grand larceny in the circuit court of Greene County under Sec. 4456, ^[1] for the theft of two lady's gold rings, a diamond engagement ring worth about $ 250, and an initialed wedding ring worth about $ 7.50 to $ 10.00, of the combined value of $ 257.50 or more, the property of Staley Williams, proprietor of a clothes cleaning establishment where appellant worked, and his punishment was assessed by the jury at two years imprisonment in the penitentiary.

He stood on his demurrer to the State's evidence and presented no testimony. The assignments of error in his brief complain of error: (a) in being forced to trial under Sec. 3898 on an amended information charging a different offense, and without adequate notice, and because the information was fatally defective; (b) in the admission of the testimony of the State's witnesses upon which he was convicted, because it had been wrongfully obtained by an illegal search of his person without a search warrant before he had been legally arrested, in violation of Sec. 15, Art. 1, Const. Mo. 1945, and Sec. 4348; (c) misdirection in the State's instruction No. 1; (d) failure to instruct on circumstantial evidence as a part of the law of the case, as required by Sec. 4074(4); (e) insufficiency of the State's evidence as to the ownership and value of the rings allegedly stolen.

The information upon which the case was tried was as follows, the italicised parts having been added by amendment to the original information:

"Wayne T. Walker, Prosecuting Attorney within and for the County of Greene, in the State of Missouri, under his oath of office informs the Court that Maxey Raymond Martin late of the County and State aforesaid, on the 10th day of January, A.D., 1947, at the County of Greene and State of Missouri, did then and there wilfully, unlawfully and feloniously steal, take and carry away certain valuable property, to-wit: one lady's yellow gold band ring with diamond set; one lady's yellow gold band wedding ring, initials SIW to BLW, of the value of Three Hundred Seventy-five ($ 375.00) Dollars, the property of Staley Williams, then and there being Contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

Taking up appellant's assignments in logical order, he first contends the amended information was fatally defective because it failed to allege he took the rings with intent to convert them to his own use. There is no merit in the assignment. It was formerly so held, State v. Gochenour (Mo. Div. 2), 225 S.W. 690, 691(3). But that decision has long since been overruled, State v. Hodges (Mo. Div. 2), 234 S.W. 789, 790(2); State v. Hamlin, 351 Mo. 157, 171 S.W.2d 714, 715(3).

It is also asserted the information should have charged the larceny was from a dwelling house. Why that contention is made we cannot see, since the instant larceny, if any, was committed in the prosecuting witness' clothes cleaning establishment. Appellant cites State v. Flowers, 311 Mo. 510, 514(3), 278 S.W. 1040, 1042(2), which was a dwelling house larceny case, in which the court commented on the fact that under (now) Sec's 4459 and 4460, read together, larceny from a dwelling house is a felony regardless of the value of the stolen property. Appellant may have based his contention on the assumption that the evidence here did not show the value of the rings was $ 30 or more, but the information alleged and the State's evidence showed it was far more than that. The information here is based on Sec. 4456, which does require stolen personal property, outside of livestock, to be of a minimum value of $ 30 to constitute the crime of grand larceny. A dwelling house has nothing to do with the case.

Next, as to appellant's contention that he was forced to trial on the amended information charging a different offense and without adequate notice. The transcript of the proceedings at the preliminary hearing held before a magistrate under Sec. 3893 on January 11, 1947, shows the complaint filed there charged appellant with the larceny of both rings, of the aggregate value of $ 375, almost in the identical language of the amended information. The original information was filed in the circuit court over two months later on March 21. For some reason the ring with the diamond set was omitted therefrom. Over three months thereafter on the morning of the trial, June 23, and before the jury was impaneled and sworn, the prosecuting attorney filed the instant amended information, which included the diamond ring as well as the band ring. Appellant's counsel objected on the ground that the amendment "makes a different charge;" "entirely changes the cause of action"; and that appellant wasn't served with a copy of the amended information until 10 A.M. The court overruled the objection and recessed until 2 P.M. to afford appellant's counsel an opportunity to study the amended information, and the trial started at the appointed time.

On these facts the appellant assigns he was...