State v. Pippey

• Citation: 71 S.W.2d 719,335 Mo. 121
• Decision Date: 17 May 1934
• Docket Number: 33167
• Parties: The State v. John Pippey, Appellant
• Court: Missouri Supreme Court

71 S.W.2d 719

335 Mo. 121

The State v. John Pippey, Appellant

No. 33167

Supreme Court of Missouri

May 17, 1934

Motion for Rehearing Overruled May 17, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Albert D Nortoni, Judge; Opinion filed at September Term, 1933 February 23, 1934; motion for rehearing filed; motion overruled at May Term, May 17, 1934.

Affirmed.

L A. Prichard and John Haley for appellant.

(1) An information may be amended either as to form or substance at any time before the jury is sworn, but no such amendment shall be allowed as would operate to charge an offense different from that charged or attempted to be charged in the original information. 10 S.W.2d 63; 1 S.W.2d 96. (2) Defendant was denied his right to preliminary hearing on the charge substituted in the information; and the substitution of the different offense amounted to the filing of an information without according defendant a preliminary hearing. It follows from these conclusions the prosecuting attorney is without authority to file an information charging a felony, in the absence of a finding by a magistrate "that a felony has been committed and that there is probable cause to believe the prisoner guilty thereof." Other jurisdictions with a similar constitutional or statutory provisions have so ruled. State v. Goetz, 65 Kan. 125, 60 P. 187; People v. Evans, 72 Mich. 367, 40 N.W. 481; State v. McGreevey, 17 Idaho 453, 105 P. 1047; Coffield v. State, 44 Neb. 417, 62 N.W. 876; People v. Dillon, 197 N.Y. 254, 90 N.E. 820, 18 Ann. Cas. 552; Robbins v. Robbins, 133 N.Y. 597, 30 N.E. 977; State v. Leicham, 41 Wis. 565; State v. Boulter, 5 Wyo. 236, 39 P. 883; State v. Lewos, 31 Wash. 515, 72 P. 121; State ex rel. McCutchan v. Cooley, 12 S.W.2d 468. Section 3812, Revised Statutes 1919, provides for the issuance of a warrant for the arrest of a defendant, "whenever complaint shall be made in writing and upon oath . . . setting forth that a felony has been committed and the name of the accused thereof." Such complaint may be made and filed by anyone, and hence imports no probability of the truth of the charge contained therein. It is only after a hearing on such complaint and a finding by the magistrate that the accused should be bound over to the circuit court for trial for the particular felony that any presumption may properly be indulged that "a felony has been committed and that there is probable cause to believe the prisoner guilty thereof." Sec. 3828, R. S. 1919. Until the prisoner has been so bound over to the circuit court, the prosecuting attorney is not authorized to file an information. Sec. 3848, Laws 1925, p. 195; State ex rel. McCutchan v. Cooley, 12 S.W.2d 466; Ex parte Saxbury, 18 S.W.2d 1041. (3) Defendant's plea in abatement should have been sustained by the court. State v. McKee, 212 Mo. 138, 110 S.W. 729; Ex parte Buckley, 215 Mo. 93, 114 S.W. 954. (4) Evidence showing crimes identical to the one charged in the information is inadmissible where the act constituting the offense speaks for itself as showing the intent or where the criminal intent is to be presumed from the act itself. State v. Sherrill, 7 S.W.2d 725. The admission of such evidence of independent offenses is reversible error. State v. Buxton, 22 S.W.2d 635; State v. Irvin, 22 S.W.2d 772.

Roy McKittrick, Attorney-General, and Wm. Orr Sawyers, Assistant Attorney-General, for respondent.

(1) The information as amended properly charges the crime of robbery in the first degree and is sufficient in form and substance. Assigned as error as No. 8 in the motion for new trial, and No. 1 in brief. Sec. 4058, R. S. 1929; State v. Goodwin, 300 S.W. 725; Secs. 3503, 3563, 3564, 3565, R. S. 1929; State v. Tunnell, 296 S.W. 423; Sec. 3391, R. S. 1929; State v. Wilcoxen, 38 Mo. 370. (2) General assignments of error in motion for new trial will not be considered on appeal, hence points 1, 2 and 3 in motion for new trial are too general. Sec. 3735, R. S. 1929; State v. Francis, 52 S.W.2d 554; State v. Ellis, 234 S.W. 845, 290 Mo. 228. (3) The plea in abatement and the motion to quash the information were properly overruled by the trial court, hence assignments of error numbers 4 and 5 in the motion for new trial which correspond to assignments numbers 2, 3 and 4 in appellant's brief, are not well taken. Secs 3467, 3482, 3483, 3503, 3564, R. S. 1929. (4) Defendant waived his demurrer to the evidence at the close of the State's case by introducing evidence in his own behalf, hence assignment No. 6 in motion for new trial which is the same as assignment No. 5 in appellant's brief, is not well taken. State v. Jackson, 283 Mo. 24, 222 S.W. 746. (5) The verdict is sufficient on which to authorize the court to fix the punishment, and there was substantial evidence to support the verdict, assigned as error as No. 7 in Motion for New Trial, and No. 6 in appellant's brief. Secs. 3704, 4061, R. S. 1929; State v. Fannin, 296 S.W. 84; State v. Creighton, 52 S.W.2d 562. (6) Instruction No. 1 was properly given in this case, hence point 9 in motion for new trial assigned as point 8 in appellant's brief are not well taken. 54 C. J., p. 1066, sec. 170; State v. Bird, 228 S.W. 753, 286 Mo. 593.

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

OPINION

COOLEY

By information filed November 22, 1929, in the Circuit Court of St. Louis County defendant was charged with robbery in the first degree, alleged to have been committed April 29, 1929. By leave of court on June 23, 1930, the information was amended by changing the date of the offense as alleged in the original information to June 24, 1929. On March 17, 1931, defendant filed a motion to quash the amended information and a plea in abatement, both of which were overruled. He was then arraigned under the amended information, entered a plea of not guilty, was tried and convicted and later at the same term of court, after his motion for new trial had been filed and overruled, was sentenced to nine years' imprisonment in the penitentiary, and appealed.

The State's evidence was principally the testimony of Fred Baker, manager of the Kroger Grocery & Baking Company's store wherein the robbery was alleged to have occurred, and in substance tended to show the following:

About 7:30 a. m., on June 24, 1929, Baker and a thirteen-year-old boy clerk were alone in the store when the defendant and another man entered and defendant asked for a package of cigarettes and a penny box of matches, which Baker delivered to him. Defendant gave Baker a quarter out of which to take the purchase price and as Baker started to hand him the change drew and presented a pistol. He compelled Baker to put up his hands and to go to the back room of the store, his accomplice at the same time compelling the boy clerk, also at the point of a pistol, to go to said room, and then, while the defendant held Baker and the boy in the back room covered by his pistol his accomplice rifled the cash register, securing therefrom $ 69.14 in money. Baker at once notified officers, giving them a description of the man who had held the pistol on him. Through that description defendant was arrested on July 20, following, and upon being taken to the store was recognized by Baker. At the trial Baker positively identified the defendant as the man who had assaulted him and who, together with an accomplice, had robbed the store on June 24.

Defendant, testifying for himself, denied participation in the robbery and introduced testimony of himself and his wife tending to prove an alibi. For the present the foregoing is a sufficient outline of the evidence. There can be no question but that the State's evidence is sufficient to make a case and to sustain the conviction.

I. Appellant contends that the court erred in permitting the information to be amended by changing the date of the offense charged from April 29 to June 24, because it had the effect of substituting a different offense from the one with which he was originally charged and for which he had been given a preliminary examination and deprived him of a preliminary examination on the substituted offense of June 24 charged by the information as amended; and that the court erred in overruling his motion to quash the amended information and his plea in abatement, each of which alleged as ground therefor that defendant had not been accorded a preliminary hearing. These contentions will be considered together. They constitute defendant's chief reliance on this appeal.

The original information charged the robbery to have been committed on April 29, 1929, and the property stolen to have been $ 69 in money. Under date of June 23, 1930, this record entry appears: "By leave of court information is amended by changing the date of the offense from April 29, 1929, to June 24, 1929, cause ordered continued by consent." The only amendment or change made was in the date of the offense charged and the amendment appears to have been made by interlineation. No objection or exception to the action of the court in permitting the amendment appears. In his motion for new trial defendant says the amendment was made "without notice" to him but there is no proof of such alleged fact and that part of the record entry "cause ordered continued by consent," indicates that he was present in person or by attorney and knew of the amendment. We do not understand appellant to contend, nor do we think it could be justly urged, that the amendment would have been improper had there been but one offense committed and the date thereof erroneously stated in the original information, at least absent some special circumstance because of which defendant's rights might have been prejudiced. The trouble here, as we shall presently explain more fully, is that, as it...