State v. Revard

• Court: Missouri Supreme Court
• Writing for the Court: COOLEY
• Citation: State v. Revard, 106 S.W.2d 906, 341 Mo. 170 (Mo. 1937)
• Decision Date: 21 June 1937
• Parties: The State v. Ben Revard, Appellant

106 S.W.2d 906

341 Mo. 170

The State v. Ben Revard, Appellant

Supreme Court of Missouri

June 21, 1937

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge.

Affirmed.

Roy McKittrick, Attorney General, and Aubrey R. Hammett Jr., for respondent.

(1) The information is sufficient in form and substance and fully apprises the appellant of the crime charged herein. State v. Reifsteck, 295 S.W. 742, 317 Mo. 268; Sec. 7783, R S. 1929. (2) The prosecuting attorney need not reverify an information amended on immaterial matters. The Missouri statutes on information follows the common-law rule permitting amendments by interlineation or erasures. State v. Darling, 216 Mo. 465; State v Sillbaugh, 157 S.W. 353, 250 Mo. 308; Sec. 3508, R. S. 1929; State v. Gardner, 231 S.W. 1058. (3) The husband, or wife, of the defendant, when testifying in behalf of the defendant shall be liable to cross-examination as to any matters referred to in his examination in chief and may be contradicted and impeached as any other witness in the case. State v. Peak, 85 Mo. 192; Sec. 3692, R. S. 1929; State v. Hawley, 51 S.W.2d 77. (4) A conviction for driving an automobile while intoxicated may be proved by actions and conduct of the defendant. State v. Raines, 62 S.W.2d 729, 333 Mo. 538; State v. Johnson, 55 S.W.2d 968. (5) The court committed no error in failure to instruct the jury that the defendant had not testified should be taken into consideration by them for such an instruction would be a comment on the evidence. State v. Long, 22 S.W.2d 813, 324 Mo. 205. (6) The court committed no error in refusing to give instruction requested by defendant, defining 'intoxicated condition." State v. Raines, 62 S.W.2d 729. (7) Assignments in motion for new trial of alleged improper remarks of prosecuting attorney were made too late to preserve anything for review by this court when made for the first time in motion for new trial State v. Forsythe, 1 S.W. 837.

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

OPINION

COOLEY

Charged by information in the Circuit Court of Polk County with the offense of driving a motor vehicle while in an intoxicated condition the defendant was found guilty as charged, sentenced to two years' imprisonment in the penitentiary and has appealed. He has filed no brief here. The State's evidence shows the following:

At the time of the alleged offense defendant was driving his two-seated automobile westward on the public highway in Polk County a short distance west of Bolivar, having in the car with him his wife and two others. The prosecuting witness, Edgar Knapp, accompanied by his wife, was driving eastward, toward Bolivar, in an automobile. The two cars collided at a curve in the highway, the left front part of defendant's car striking the left side of Knapp's car at about the door or left rear fender. Both cars were considerably damaged. Knapp's wife was slightly injured. No one else was hurt. Knapp's car was stopped by the impact and driven backward and to his right -- southward -- several feet. Defendant's car stopped against a railing at the north side -- defendant's right side -- of the graded roadway. Knapp testified that at and immediately before the time of the collision he was driving about twenty miles an hour and that defendant was driving fast and failed to make the curve properly. From Knapp's testimony and that of other State's witnesses who observed the tire marks on the highway it appears that Knapp was well to his right of the white center line of the highway when the collision occurred.

Immediately after the collision and at the scene thereof the occupants of both cars got out of their respective cars. Knapp testified that as defendant got out of his car he was "very much intoxicated." Immediately after the collision a number of people, some of whom had seen the collision or whose attention had been attracted by the crash, gathered at the place. In a very short time the sheriff and the prosecuting attorney arrived (the accident having occurred at the outskirts of Bolivar, the county seat). A dozen or so of these people testified that defendant appeared to be intoxicated and in their judgment was. Some of them described his actions, speech, etc. The sheriff, who had known defendant for a number of years and had transacted "quite a bit" of business with him, testified that on the occasion in question defendant "was drunk;" that he took defendant from the place of the collision to the prosecuting attorney's office, Mr. and Mrs. Knapp and defendant's wife and his other two passengers, Mr. and Mrs. Hopper, accompanying them, and that at said office defendant was still drunk. There was no evidence that defendant imbibed or could have imbibed any intoxicating liquor after the collision and before the sheriff took him to the prosecuting attorney's office.

Defendant did not testify. His wife and Mrs. Hopper testified that he appeared to be all right and did not appear to be intoxicated. Relatives of defendant and his wife, whom they had visited that day at Springfield, testified similarly as to his condition when he left that place an hour or so before the collision. Other facts, if necessary, will be referred to in the course of the opinion.

Defendant in his motion for new trial charged that the court erred in overruling his motion to quash the information. The motion to quash is not set out in the bill of exceptions, therefore is not before us. Neither does said bill show any exceptions to the overruling of said motion. But the information is part of the record proper and its sufficiency to charge an offense must be considered, though a motion to quash, in the nature of a demurrer to the information, be not incorporated in the bill of exceptions. [See State v. Settle, 329 Mo. 782, 46 S.W.2d 882.] Omitting formal parts and signature the information charges that defendant "did then and there unlawfully and feloniously drive and operate a motor vehicle on the public highways of said county and State while in an intoxicated condition, against the peace and dignity of the State." It, in substance, follows the language of the statute creating the offense, Section 7783, Revised Statutes 1929 (Mo. Stat. Ann., p. 5234), and is substantially as approved in State v. Pike, 312 Mo. 27, 278 S.W. 725. [See, also, State v. Reifsteck, 317 Mo. 268, 295 S.W. 741.] We hold it sufficient.

It is further alleged in the motion for new trial that the court erred in permitting the prosecuting attorney to amend the information (apparently before trial) by interlining the word "while," after the motion to quash had been filed and without reverifying the information as so amended. It does not appear that objection was offered to the alleged amendment being made by interlineation, without reverification, (if so made) instead of by filing an amended information. That such amendment, if so made by interlineation as suggested by defendant, was not contrary to law or prejudicial to defendant, see: State v. Darling, 216 Mo. 450, l. c. 464, 115 S.W. 1002; State v. Sillbaugh, 250 Mo. 308, 157 S.W. 352; State v. Gardner (Mo. App.), 231 S.W. 1057. But we refrain from discussion of this question because it is not properly here for review. The record certified to us does not show that such amendment was made. The only information certified to us as part of the record is the one on which the case was tried, which contains the word "while." There is attached to the transcript what may be supposed to be a copy of the motion to quash, but it is not contained or preserved in the bill of exceptions. It is not, in this respect, in the nature of a demurrer to the information but seeks to present matters de hors the record of which there is no proof in the certified record. Not only do such allegations in a motion to quash fail to prove themselves but a motion of such character and exceptions to the overruling thereof, in order to be reviewable, should be preserved in the bill of exceptions, together with the proof tending to sustain such affirmative allegations. [See State v. Hembree (Mo.), 37 S.W.2d 448; State v. Settle, supra.] A similar allegation is made in defendant's motion for new trial. But again the bill of exceptions contains no proof of the truth thereof and it is well settled that such allegations in a motion for new trial do not prove themselves.

Complaint is made that the court erred in permitting witnesses for the State to testify that at the scene of the collision and immediately after it had occurred defendant was or appeared to be intoxicated. No objection was made to any of this testimony except in one instance, viz.: While Knapp was on the witness stand he was asked to state what defendant's condition was as the latter got out of his car, and without objection, answered, "He was very much intoxicated." He then described defendant's actions and conduct. Following such description he was asked, "And in your opinion he was intoxicated there at the time when he got out of the car?" to which he answered, "Yes, sir." Not only do we think he was qualified to give the opinion expressed, having described the actions and conduct of defendant, but there was no objection until after the question had been answered (when objection was offered on the ground that the question called for a conclusion) and there was no motion to strike the answer. The objection came too late. Moreover, Knapp had previously testified without objection that defendant was intoxicated when he got out of his car. This contention is ruled against appellant.

It is contended that error was committed in permitting cross-examination of defendant's wife beyond the scope of her examination in chief. Mrs. Revard testified in chief in effect that so far as she knew and as defenda...