State v. Rice

• Decision Date: 09 October 1967
• Docket Number: No. 2,No. 52887,52887,2
• Citation: 419 S.W.2d 30
• Parties: STATE of Missouri, Respondent, v. Cornelius C. RICE, Appellant
• Court: Missouri Supreme Court

Page 30

419 S.W.2d 30

STATE of Missouri, Respondent, v. Cornelius C. RICE, Appellant.

No. 52887.

Supreme Court of Missouri, Division No. 2.

Oct. 9, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Special Asst. Atty. Gen., St. Louis, for respondent.

J. Whitfield Moody, J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.

BARRETT, Commissioner.

A jury found the appellant, Cornelius Rice, Jr., 'guilty of the sale of marijuana RSMo 1959, §§ 195.010(5)(17), 195.020, RSMo 1959, §§ 195.010(5) (17), 195.020, V.A.M.S. Originally by an indictment filed on April 8, 1966, Rice was charged with having sold 54.917 grams of marijuana to Keith Fieger on September 8, 1965. In substitute informations, one on May 18, 1966, and the other on October 3, 1966, (the latter two days prior to the trial on October 5, 1966), a prior felony conviction (RSMo 1959 Supp. § 556.280, V.A.M.S.), larceny from the person was charged. (Upon the trial of the cause the court found the prior felony conviction and fixed the appellant's punishment at eight years' imprisonment.) In the second amended information, October 3, 1966, it was charged that on September 8, 1965, Rice sold 54.917 grams of marijuana to Maurice Herron. On October 5, 1966, after the empaneling of the jury but before the offering of any evidence, defendant's counsel objected that as to the change of names of the purchaser the latter information violated the defendant's rights under the state and federal constitutions to be informed of the nature of the charge. Const. Mo. Art. I, Sec. 18, V.A.M.S. As to the amendment in both informations as to the prior offense as well as to the name of the purchaser counsel claimed that forcing him to trial on October 5, 1966, was unfair and, therefore, he said that the case should be 'continued for a period of approximately two weeks for the defense to enable themselves to prepare a defense in accordance with this new information.' After this objection the prosecuting attorney withdrew the second information and elected to go to trial on the first substitute information of May 18, 1966, which only added to the original charge Rice's prior conviction, leaving the name of the purchaser as Fieger. As to that particular amendment, the addition of the prior conviction, the case is governed by the recent narcotics case of State v. Collins, Mo., 383 S.W.2d 747, 750; 'The substituted information only alleged facts making the habitual criminal statute applicable in determining the punishment and this did not charge an offense different from the original indictment, as defendant erroneously claims.' In this posture and in the particular circumstances noted hereinafter the appeal is not necessarily concerned with whether the amendment as to the name of the purchaser of the marijuana infringes the appellant's right to be informed of the offense charged. The amendment as to the prior offense did not standing alone entitle the appellant to a continuance: 'No amendment of the information or substitution of an information for an indictment as herein provided shall cause a delay of the trial unless the defendant shall satisfy the court that such amendment or substitution has made it necessary that he have additional time in which to prepare his defense.' RSMo 1959, § 545.300, V.A.M.S.; Criminal Rules 24.02, 24.03, V.A.M.R.

In brief these are the facts insofar as they relate to the substantive offense On the afternoon of September 8, 1965, Maurice Danny Herron, an informer, called his old friend Rice on the telephone 'and I told him that my friend from K.U. that I had made a purchase from (for) him the week before wanted to make another purchase of marijuana, two cans, and I asked him how much would it be; and he told me he could sell me two cans for seventy dollars, and I told him that I would meet him later on that night when the guy came in from Lawrence.' Herron then called federal narcotics agent Fieger and told him that he had made arrangements for 'another purchase for him.' Herron met Fieger and agent Wilkie (who provided surveillance) at a parking lot at 31st and Florence in Kansas City, the agents there searched Herron and his automobile for narcotics and marijuana and money and Fieger and Herron proceeded to the home of Rice's parents at 26th Street and Walrond. Herron sounded the horn on his automobile and when Rice came out sat in the rear seat of the automobile and Herron introduced Fieger as 'my friend from K.U.' as the 'fellow that I had made the previous purchase for.' Fieger complained of the amount of marijuana in the prior sale as well as of the price but Rice said 'that's the price stuff is in Kansas City, and you got a fair shake, I gave you a fair amount for your money.' At this point Rice complained of the traffic at 26th and Walrond and so they drove to Lockridge and Benton and parked. There Rice got out of the automobile and motioned to Herron to come to the back of the car where Fieger could not hear their conversation. But Herron walked up to the automobile and asked Fieger for the money but Fieger said he wanted to talk to Rice and 'they bickered a few minutes about price. Keith (Fieger) was trying to get him to sell for $50 and he maintained the price of $70, so Keith counted out $70 and he started to hand it to Rice and Rice walked away and told me to take the money.' Fieger gave Herron $70 (marked bills) and as Herron and Rice walked away Rice handed him the $70 and they walked to a liquor store at 27th and Benton where Rice changed the twenty and ten dollar bills into bills of other denominations. Rice walked on home telling Herron 'to go back to my car and get Keith and come back to his house and he would show me where the stuff was.' Herron and Fieger...