State v. Smith, 12327

Citation655 S.W.2d 745
Decision Date05 July 1983
Docket NumberNo. 12327,12327
PartiesSTATE of Missouri, Respondent, v. Clyde SMITH, Appellant.
CourtCourt of Appeal of Missouri (US)

John D. Ashcroft, Atty. Gen., Kristie Green, Charles E. Smarr, Asst. Attys. Gen., Jefferson City, for respondent.

W. Dale Burke, Monett, for appellant.

TITUS, Judge.

An information filed April 30, 1980, charged defendant with stealing 86 cattle owned by Joe and James Jackson. On April 24, 1981, the day of trial but before any evidence was heard, and over defendant's objections, the court permitted the state to amend the information so as to accuse defendant of stealing 87 cattle. The jury found defendant guilty and, per the verdict, he was sentenced to imprisonment for a term of seven years. §§ 570.030 and 558.011. 1 Defendant appealed.

Defendant's first point relied on is that the trial court erred in permitting the amendment to the information as noted, supra, and in not remanding the cause for a new preliminary hearing. Under § 545.300 and Rule 23.08 the information may be amended at the time done in this case provided no different or additional offense is charged and defendant's substantial rights are not prejudiced by the amendment. State v. Goree, 633 S.W.2d 758, 759 (Mo.App.1982). The amendment here simply accused defendant of stealing 87 instead of 86 cattle. In State v. Phillips, 511 S.W.2d 841, 844 (Mo.1974), defendant was not permitted to successfully complain of an amendment which charged him with taking $250 in a robbery instead of $200 as originally charged. As the amendment in the instant case did not charge an additional or different offense the question then is the alleged prejudice to defendant. The test of prejudice is whether a defense under a charge as first made would be equally available after the amendment and whether defendant's evidence would be equally applicable after, as well as before, the amendment. State v. Leake, 608 S.W.2d 564, 565 (Mo.App.1980). The answer to both test questions in this instance is "Yes" and defendant's first point is denied.

At the end of the voir dire examination of prospective jurors the state moved to strike venire persons Southers and Skinner for cause, and the court obliged. Defendant now claims this was error and, without stating "wherein and why" contrary to Rule 30.06(d), says the two stricken "proved themselves to be impartial and qualified to serve" and that the court's action deprived him of "a jury panel fairly representing a cross-section of the community." Mrs. Skinner said it was against her belief to sit in judgment of her fellow man and Mr. Southers avowed it was not his place to sit in judgment of someone else, and unless he personally saw accused commit the crime charged, he could not say the accused was guilty. "In determining the qualifications of a prospective juror, the trial court has very wide discretion, and the court's ruling will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion.... We should also keep in mind that the trial court is in a better position, by reason of its presence and personal observation, to determine the validity of a challenge for cause than is an appellate court when reviewing the record.... The challenged venirem[e]n clearly indicated a misconception of [their] duties as [jurors], and ... expressed a substantial doubt as to [their] willingness or ability to follow the law as declared by the court in its instructions. In these circumstances there was no abuse of discretion on the part of the trial court in sustaining the State's challenge for cause." State v. Weekley, 621 S.W.2d 256, 258[1, 2] (Mo.1981). Also see State v. Grady, 649 S.W.2d 240, 244 (Mo.App.1983). Defendant's second point relied on is denied.

Defendant's third point relied on is that the trial court erred in not striking, at defendant's request, veniremen Owens, Troutman, Keith and Reser who were, respectively, a stock farmer, a cattle farmer, a dairy farmer and a retired dairy farmer. He contends they were prejudiced against him by reason of their occupations and of the crime charged, thereby depriving him of a qualified panel and his statutory number of peremptory challenges.

The weakness of this point is illustrated by the fact that when veniremen Owens, Troutman and Keith were asked by defense counsel whether their occupations would tend to prejudice them against a person accused of stealing cattle, each replied in the negative and indicated they could judge the case fairly. When asked similar questions, venireman Reser first stated "I don't know really ... I think I might." However, when later asked by the court if he could sit "as a fair and impartial juror and listen to the evidence and instructions and give the Defendant a fair hearing and give the State a fair hearing," Reser answered, "I think so."

The criminally accused is entitled to fair and impartial jurors who admittedly will follow the law. To protect such a right, defendant must be given a full panel of qualified veniremen from which to make his allotted peremptory challenges. Albeit a trial court's refusal to sustain a valid challenge for cause constitutes reversible error, the trial court possesses wide discretion to determine the qualifications of a venireman. Its decision thereon will not be disturbed upon appeal absent a showing of a clear abuse of discretion and a real probability of harm to the defendant. No hard and fast line may be drawn as to when a challenge for cause should be sustained vel non. There are instances when an appellate court may have done differently than the trial court but, nevertheless, cannot say there was an abuse of discretion. Each case must be judged on its particular facts. The trial judge's determination of the qualifications of prospective jurors necessarily involves a judgment based upon personal observation of each venireman's demeanor and the nuance of his answers in determining whether he would be fair and impartial if chosen as a juror. As the trial judge is in a far better position than we from a cold record to make that determination, any doubts as to the trial court's findings will be resolved in its favor. State v. Smith, 649 S.W.2d 417, 421-422[2-7] (Mo. banc 1983). Based on these tenets and what we have noted concerning the voir dire examination of the four veniremen in question, we find no abuse of discretion by the trial court and deny the third point relied on.

In utter disregard of the mandates of Rule 30.06(d), ...

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  • Byrd v. Armontrout, 87-1966C-(1).
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    • June 9, 1988 the date of the Grand Jury Association good citizenship award nomination. State v. Byrd, 676 S.W.2d at 505, citing, State v. Smith, 655 S.W.2d 745, 749 (Mo.App.1983). Although it might have been error to permit the state to cross-examine Coble about the robbery and murder arrest in Georg......
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