State v. McIntosh

• Decision Date: 14 March 1960
• Docket Number: No. 47007,No. 1,47007,1
• Citation: 333 S.W.2d 51
• Parties: STATE of Missouri, Respondent, v. Idell McINTOSH, Appellant
• Court: Missouri Supreme Court

Page 51

333 S.W.2d 51

STATE of Missouri, Respondent, v. Idell McINTOSH, Appellant.

No. 47007.

Supreme Court of Missouri, Division No. 1.

March 14, 1960.

John F. Moeckel, Caruthersville, for appellant.

John M. Dalton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was convicted of the unlawful sale of narcotics and sentenced to two years' imprisonment in the state penitentiary. See Secs. 195.020 (Laws 1953, p. 628) and 195.200 RSMo 1949, V.A.M.S. She has appealed, but has not favored us with a brief. We shall review the assignments of error contained in her motion for a new trial. Supreme Court Rule 28,02. The motion covers some thirty pages of the transcript.

The amended information, filed July 5, 1957, charged the defendant with an unlawful sale of narcotic drugs, to wit: 'two one-quarter grain tablets compound, derivative, mixture and preparation of opium' to Shirley Ann Fowler for $10, on May 22, 1957, in Pemiscot County, Missouri. The amended information is quite lengthy and need not be set out herein.

Error is assigned in the motion for new trial on the court's action in overruling defendant's motion to quash 'for the reason that the amended information was vague, indefinite and did not charge this defendant with any offense against the laws of the State of Missouri, did not contain the same charge as alleged in the original information, was not the same charge alleged in the affidavit filed in the Magistrate Court, and defendant did not have a preliminary examination on the charge in the amended information as required by law.' See Supreme Court Rule 25.06, 42 V.A.M.S. No evidence was offered in support of the allegations which required proof outside of the record.

The record shows that, on December 4, 1957, defendant's 'court appointed counsel' filed an unverified motion to quash the amended information, but the grounds alleged therein do not correspond to those stated in the motion for a new trial. The motion was based upon some matters not shown by this record, to wit: that this case (No. 7044) was a duplicate of Case No. 7043 and charged a sale on the same day to the same person; that the defendant had been tried and acquitted in Case No. 7043; that defendant had not been arrested in Case No. 7044 when her purported preliminary hearing was held; that the preliminary hearing in Case No. 7044 was held on the same day the complaint was filed; that defendant was denied time to prepare for the hearing in order to accomodate the Federal Narcotics Agent; and that the court had no jurisdiction to try defendant in Cash No. 7044, after her acquittal of the sale charged in Case No. 7043. No evidence was offered in support of these allegations and, on January 10, 1958, the motion to quash was taken up, submitted to the court and overruled. In the absence of evidence to support the allegations of the motion, the court did not err in overruling the motion to quash [See State v. Spurlock, Mo.Sup., 312 S.W.2d 843, 845(3)], nevertheless it is our duty on this appeal to determine the sufficiency of the amended information. Supreme Court Rule 28.02. We find the amended information sufficient to fully inform the defendant of the crime charged against her under the then applicable statutes and to meet the tests laid down for determining the sufficiency of an information or indictment. See Sections 195.020 (Laws 1953, p. 628), 195.010(16, 24) [Laws 1953, p. 619], 195.050, 195.080 and 195.200 RSMo 1949, V.A.M.S.; State v. Crawford, Mo.Sup., 251 S.W.2d 76, 77(4); State v. Renkard, 150 Mo.App. 570 313 S.W. 168.

It is alleged that the court erred in overruling defendant's motions for judgment of acquittal tendered at the close of the State's case and at the close of all the evidence. Defendant's motion tendered at the close of the State's case-in-chief was waived when defendant offered evidence in her own behalf. State v. Vincent, Mo.Sup., 321 S.W.2d 439; State v. Richardson, Mo.Sup., 315 S.W.2d 139, 140. The grounds stated in both motions for acquittal were: (1) that 'no valid information charging the defendant with any crime had ever been filed'; (2) that the testimony and evidence against defendant was obtained by an illegally issued and unlawfully executed search warrant; and (3) that the prosecution was 'the result of a carefully planned common scheme and conspiracy on the part of a large group of law officers including the prosecuting attorney to trap this defendant into a law violation for the mere purpose of instituting a criminal prosecution against her * * *.' The sufficiency of the amended information to charge an offense has already been ruled.

At this time we shall omit the evidence obtained by the State by the use of a search warrant and most of the evidence relied upon to show entrapment (matters subsequently considered) and we shall briefly review the direct evidence tending to show the unlawful sale of narcotic drugs by defendant.

Defendant, a married woman, resided with her son and daughter at 410 East Sixth Street in Caruthersville, Pemiscot County, Missouri. On May 22, 1957, Clyde Orton, the Sheriff of Pemiscot County, obtained ten one-dollar bills, copied down their serial numbers on a piece of paper and handed the bills to Ralph Witt, a Federal Narcotics Agent, who picked up Shirley Ann Fowler in a 'Government automobile' about 7 p. m., and drove to defendant's home. On the way Witt gave Shirley the ten one-dollar bills. Shirley was 22 years old, a divorcee well known to defendant, but she had been away for about a year. At one time Shirley had used dope, but was not using it at that time or at the time of the trial. She had no dope, narcotics or pills in her possession when Witt came for her. On a previous occasion, 'that afternoon,' Shirley had introduced Witt to defendant as Ray Garner. Before 'that day' Shirley had told defendant she 'was coming back that night to buy two pills, but * * * didn't want Mr. Garner to know it.' When Witt and Shirley reached defendant's home about 7:15 p. m., Witt parked the car in front of the house and they both went in and visited with defendant and waited until defendant sent her son and a visitor from the room. Defendant then excused herself and also left the room. Shirley got up and went after defendant into a bedroom and asked her 'if she had any morphine pills.' Defendant asked Shirley if she had the money and Shirley said, 'yes.' Defendant then went to another part of the house and Shirley went back to the living room for her purse and money and returned to the bedroom to meet defendant. Shirley arrived first, but defendant presently entered the room and handed Shirley two pills, or tablets, represented to be morphine tablets. They were in a small cardboard box. Shirley opened the box and counted the pills, put the box in her purse and then handed over the ten one-dollar bills to defendant. Defendant counted the money in Shirley's presence. Shirley returned to the living room and put her purse down to advise Witt of the purchase and Witt took possession of the purse and the pills she had obtained. Defendant had not then returned to the living room. When defendant did return, Witt identified himself and placed her under arrest. Thereafter, Witt, a registered pharmacist and a Federal Narcotics Agent, ran 'a field test' and identified the two pills or tablets as 'quarter grain hypodermic tablets * * * readily soluble and used in solution and administered by hypodermic needle.' He testified that the particular two pills, when 'field tested,' showed the drug to be 'an opium derivative' and a narcotic drug, but the witness did not know the particular kind. The pills were then sent for a chemical analysis. James Rhodes, an employee of the State Highway Patrol, whose qualifications as a chemist were admitted, made tests and analyses and testified that the pills contained morphine sulphate, an opium alkaloid and a narcotic drug. None of this evidence was obtained by use of a search warrant and this evidence alone was sufficient to make a case for the jury.

Before proceeding further with the State's evidence, we shall rule other assignments of error concerning the admissibility of evidence and certain related matters.

Prior to the trial the defendant filed a motion to require the State to elect which of three cases pending against defendant the State would try first. This motion was called up on December 17, 1957, and the State elected to try Case No. 7044. At that time motions to quash the amended information, to disqualify the prosecuting attorney and to quash a search warrant and suppress evidence were pending in each of the three cases, and the court advised counsel that any additional motions not filed and ruled by January 8, 1958, would be overruled, as he didn't want 'any dilatory motions filed.' The motion for new trial says that this was error because it 'was in effect ordering the defendant to reveal to the prosecuting attorney what his defense might be on the day of the trial'; and that it 'indicated bias and prejudice on the part of the Judge in favor of the State and he should therefore have disqualified himself on his own motion.' Defendant made no objection at the time to the time limit fixed by the court and, subsequently, she offered other motions as hereinafter stated. We find nothing in the record to support this assignment of error or the conclusions reached. The assignment is overruled. Supreme Court Rule 25.06.

Defendant's motion to quash the search warrant and suppress evidence (see Supreme Court Rule 33.03) and her motion to disqualify the prosecuting attorney (both motions were filed in all three cases) were heard and considered together. Both motions were overruled, although a 38-caliber revolver taken from defendant by the sheriff at the time of serving the warrant was ordered returned to her. Error is assigned on the court's action in overruling the two mentioned motions. On the...