State v. Quigley, 11292

• Decision Date: 05 December 1979
• Docket Number: No. 11292,11292
• Citation: 591 S.W.2d 740
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Paul W. QUIGLEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 740

591 S.W.2d 740

STATE of Missouri, Plaintiff-Respondent, v. Paul W. QUIGLEY, Defendant-Appellant.

No. 11292.

Missouri Court of Appeals, Southern District, Division Three.

Dec. 5, 1979.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 17, 1979.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael A. Scearce, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.

PREWITT, Judge.

Defendant appeals from convictions of two counts of assault without malice. § 559.190, RSMo 1969. Defendant was sentenced to three years on Count I and four years on Count II.

The charges arose from an incident which occurred on June 10, 1978 near a peach orchard operated by John and Carlton Stewart, five miles north of Campbell in Dunklin County, Missouri. A four-door 1970 or 1971 Oldsmobile entered a private road leading to Carlton Stewart's house that afternoon about 1:30. The vehicle was chocolate brown with a light colored top. Later, around 3:00 p. m., it was seen again in the area and there were two individuals in the car. One had "bushy" hair. The vehicle was seen there again about 4:15 p. m. with the same persons in it.

Carlton Stewart was awakened from a nap shortly after 8:00 p. m. and went to the door where a person later identified as Anthony Germanceri was at the door. Anthony pulled a gun and tried to enter the premises, but Carlton hit the barrel of the pistol with his arm and slammed the door. Anthony then fired into the lock and Carlton got a pistol and fired back several times. After the shots were exchanged, Anthony went back to the car and started to leave. On the passenger's side was a large fellow with "bushy" hair, later identified by Carlton Stewart as the defendant. As Stewart was opening the front door, a shotgun blast shattered the glass door. Anthony was driving and the shot came from the passenger's side of the vehicle. Stewart fired several shots at the vehicle as it left the area.

Defendant resided at Qulin, Missouri, 14 miles northwest of Campbell. On June 17, 1978, a 1971 four-door Oldsmobile which had been destroyed by fire, was found bout 4 miles south of Qulin. The only paint remaining was a brown strip in the trunk. It was not possible to determine the color of the top of the car. No bullet holes were found in the automobile, although a small dent was located in the right rear fender. The Oldsmobile was registered to Anthony Germanceri. Defendant and Germanceri were seen together in the area near the date of the offense. Pictures of the burnt vehicle were identified by witnesses as being the car at the Stewart residence. Prior to trial, and at the trial, appellant admitted burning it. Defendant said he didn't know why he burnt the vehicle. He said it was given to him in St. Louis by a "bushy headed beatnik" who he couldn't identify further. When asked if it was to cover up evidence, he replied, "I don't know". Several witnesses testified that defendant was in St. Louis, Missouri when the shooting incident occurred.

Defendant has three claims of error. These will be considered in the order stated in defendant's brief. He first claims that the State's information was defective and untimely. On the day of trial, before any testimony was heard, the State was allowed to amend the information to add that defendant had previously been convicted of a felony and imprisoned in Arkansas. That conviction was admitted. Defendant objected to the amendment because of "its form and timeliness". Rule 24.02, V.A.M.R., provides that "The court may permit an information to be amended . . . 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." While the indictment might not be in perfect form, we believe it sufficiently apprised defendant of the facts of the offenses charged. No prejudice was shown due to the time that the amendment was allowed. The prosecutor stated that written notice of the motion to amend was given to defendant's counsel six days before the trial and that he had been orally advised of the amendment several days before that. Defendant's attorney acknowledged that this was correct. The amendment apparently made no change in the facts alleged in the two counts charged and did not charge any additional or different offense for which defendant was being tried. An amendment to add the second offender act does not charge an offense different from that originally charged. State v. Shumate, 516 S.W.2d 297, 299 (Mo.App.1974). No prejudice to defendant's substantial rights appears. Under these circumstances the trial court did not err in permitting the amendment. Point I is ruled against defendant.

Defendant's second point claims error in allowing evidence that defendant had burned the Oldsmobile, as it showed the commission of a crime unrelated to the offense charged. The general rule in this State is that proof of the commission of a separate crime is not admissible unless it has a legitimate tendency to directly establish the defendant's guilt of the crime charged. State v. Dalton, 587 S.W.2d 644, 645 (Mo.App.1979); State v. Cheesebrew, 575 S.W.2d 218, 222 (Mo.App.1978). The State did not attempt to...