State v. Ninemires
| Decision Date | 12 November 1957 |
| Docket Number | No. 45982,No. 2,45982,2 |
| Citation | 306 S.W.2d 527 |
| Parties | STATE of Missouri, Respondent, v. Lee NINEMIRES, Appellant |
| Court | Missouri Supreme Court |
John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.
The defendant, a prisoner in the Missouri State Penitentiary, has appealed from the judgment of the Circuit Court of Daviess County overruling his motion filed pursuant to Supreme Court Rule 27.26, 42 V.A.M.S.
On September 14, 1955, defendant was found guilty by a jury of murder in the first degree and his punishment was assessed at life imprisonment. He was sentenced in accordance with the verdict on October 28, 1955. The record does not show the filing of a motion for new trial and the defendant apparently took no appeal.
On September 26, 1956, seeking to avail himself of the provisions of Supreme Court Rule 27.26, the defendant filed in the Circuit Court of Daviess County his motion entitled 'Motion to Vacate Sentence and Judgment of Court.' Thereafter, on October 22, Sec.956, the trial court overruled the motion because 'the files and records of this cause show to the satisfaction of the Court that the prisoner Lee Ninemire is entitled to no relief.' Notice of appeal was filed on November 2, 1956, and, on defendant's motion, he was permitted to prosecute his appeal as a poor person.
At the onset we are confronted by respondent's contention that the notice of appeal was not filed within the time allowed by law and therefore this court is without jurisdiction to review the case on appeal. As stated, the judgment overruling the motion to vacate was rendered on October 22, 1956, and the notice of appeal was not filed until November 2, 1956, which was the eleventh day after the judgment was rendered. The respondent takes the position that the notice of appeal must be filed within ten days after judgment, citing Supreme Court Rules 28.03 and 3.24 and Sec. 512.050 RSMo 1949, V.A.M.S. So far as pertinent, Rule 28.03 provides: Section 512.050, with respect to the time for taking appeals in civil cases, provides: 'No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.' Rule 3.24 provides:
Since the transcript does not show the filing of a motion for new trial directed to the judgment of October 22, 1956, the case falls within the provisions of paragraph (a) of Rule 3.24 quoted above. Therefore the appeal taken on November 2 was not out of time and, by reason of paragraph (b) of Rule 3.24, it was not premature. The objection to our jurisdiction must be overruled. State v. Robbins, Mo., 269 S.W.2d 27, cited by respondent, is distinguishable because a motion for new trial was filed in that case and it was held the appeal must be taken within ten days after the overruling of the motion. Further, it should be noted that we do not reach for determination the question of whether a proceeding under Rule 27.26 is civil or criminal; under the pertinent facts of this case, the result would be the same in either event.
If the appellant's motion to vacate and the files and records of the original criminal prosecution disclose that a claim for relief is not stated, a hearing is not required and the trial court did not err in overruling the motion. Sup.Ct.Rule 27.26; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 807[7, 8]
The appellant first charges that the warrant for his arrest was insufficient in that it stated that he 'did then and there unlawfully, feloniously, knowingly, maliciously, wrongfully, wilfully, on purpose, deliberately with specific criminal intent, and with malice aforethought shoot Jackie Lee Brown * * *,' whereas the affidavit and complaint filed charged him with 'a much more grave offense' which we assume to be murder in the first degree. Appellant cites Sec. 544.020 and Rule 21.08 providing that the magistrate shall issue a warrant 'reciting the accusation.' So far as the transcript discloses, the appellant made no attack on the warrant prior to his trial and conviction. Obviously the warrant, on its face, disclosed that the defendant was charged with a criminal offense known to the law. Slight defects or imperfections which do not tend to prejudice the substantial rights of the defendant will not render the warrant invalid. Schwartz v. Dutro, Mo., 298 S.W. 769, 771. We need not determine whether the warrant was defective because it did not allege the felony precisely as it appeared in the affidavit and complaint, since the defect, if any, went to the validity of the arrest and not to defendant's guilt or innocence of the offense charged. This is the sort of preliminary matter which is waived by failure to make timely objection and going to trial. State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, 302; State v. Harmon, Mo., 243 S.W.2d 326, 328.
Nor do we find a claim for relief stated in appellant's next charge, which is, the court had no jurisdiction to try him on the amended information because the trial court did not permit the substitution and further that the amended information charges the defendant with a different offense in violation of Sec. 545.300.
Supreme Court Rule 24.02 provides: 'The court may permit an information to be amended or an information to be substituted for an indictment at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.' We have recently held that an amended information may be filed even though the prior information or indictment has not been held insufficient. State v. Green, Mo., 305 S.W.2d 863. Where the record shows the filing of such amended information without objection, it will be presumed the trial court 'permitted' the filing in accordance with Rule 24.02.
The original information was amended to allege a prior felony conviction under the Habitual Criminal Act. The averment of a former conviction added by the amendment did not constitute a separate or different offense, but only authorized the assessment of additional punishment if the defendant was found guilty of the principal charge and the former conviction. State v. Long, 324 Mo. 205, 22 S.W.2d 809, 811.
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