State v. Stidham

• Decision Date: 08 June 1953
• Docket Number: No. 43347,No. 2,43347,2
• Citation: 258 S.W.2d 620
• Parties: STATE v. STIDHAM
• Court: Missouri Supreme Court

Page 620

258 S.W.2d 620

STATE v. STIDHAM.

No. 43347.

Supreme Court of Missouri, Division No. 2.

June 8, 1953.

John R. Martin and William O. Russell, Joplin, for appellant.

John M. Dalton, Atty. Gen. and Paul N. Chitwood, Asst. Atty. Gen., for respondent.

TIPTON, Judge.

The appellant was found guilty by a jury in the circuit court of Jasper County, Missouri, of the crime of robbery in the first degree by means of a dangerous and deadly weapon, and his punishment was assessed at 25 years' imprisonment in the state penitentiary. From that sentence he has duly appealed.

In his brief the appellant states that the sufficiency of the evidence to support the verdict was not raised in his motion for a new trial, but that under rule 3.27 of this court we can review the evidence. That rule provides, 'Plain errors affecting substantial rights may be considered * * * on appeal, in the discretion of the court, though not raised in the trial court * * * when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.' 'This rule is one of civil procedure and is inapplicable in criminal cases. Section 506.020 RSMo 1949, V.A.M.S. Supreme Court Rule 3 is one which supplements and harmonizes the Civil Code.' State v. Davis, Mo.Sup., 251 S.W.2d 610, loc. cit. 616. Therefore, the sufficiency of the evidence is not before us.

The first assignment of error briefed by appellant is that the trial court erred in permitting the state to amend the information after the trial had commenced.

After the jury had been sworn and witness B. E. Burke had testified, counsel for appellant orally moved the court to quash the information for the failure to allege that Emerson Robinson was the agent, servant or clerk of the Grapette Bottling Company, and to allege that Emerson Robinson was in charge of the items alleged to have been taken from that corporation.

The original information alleged (1) the felonious taking of the property of the Grapette Bottling Company by the appellant and Albert Green, (2) from the presence of Emerson Robinson, (3) an assault upon said Robinson by means of a dangerous and deadly weapon, to-wit, a revolver, (4) against the will, and by putting Emerson Robinson in fear of immediate injury to his person.

The trial court permitted the state to amend the information by adding the following allegation, 'the agent of and in possession of said money belonging to the Grapette Bottling Company, a corporation.'

Section 545.290 RSMo 1949, V.A.M.S., reads:

'The statute of jeofails, as applicable to criminal pleadings and proceedings in prosecutions by indictment, shall apply to all proceedings in prosecutions by information; and any affidavit or information may be amended in matter of form or substance at any time by leave of court before the trial, and on the trial as to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant, on the merits, and no amendment shall cause any delay of the trial, except at the instance of the defendant for good cause shown by affidavit.'

This section permits an amendment to an information after the trial has commenced 'as to all matters of form and variance'. We think the amendment went solely to the form of the information. Before the amendment, the information charged that the appellant and another, by the use and means of a dangerous and deadly weapon, feloniously took money, the property of the Grapette Bottling Company, by putting Robinson in fear of immediate injury to his person. The only reasonable inference that can be drawn is that Robinson was the agent in charge of the Grapette Bottling Company's property that was taken.

In the case of State v. Davis, Mo.Sup., 58 S.W.2d 305, loc. cit. 307, the indictment was identical with the original information in this case except it did say, 'from the person and against the will of the said Frank B. Moore'. In ruling the indictment sufficient, we said: 'The inference that Moore was the servant, clerk, or agent of the bank may properly be drawn without violation of the rule that nothing shall be left to intendment.'

We find no merit in this assignment.

At the resumption of the trial, after a short recess, appellant moved for a mistrial, stating that the jury was separated during that recess. The appellant did not offer to prove the separation of the jury. Nothing is better settled than that unverified allegations in a motion in a criminal case do not prove themselves. State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774.

The record fails to disclose that the sheriff was duly sworn at the close of the case to take charge of the jury. We have ruled that under this condition of the record, the verdict would not be set aside. State v. Page, 212 Mo. 224, 110 S.W. 1057. Nor is it reversible error to put the jury in charge of the sheriff during its deliberations when he had been a witness for the state. The sheriff is a public officer and conservator of the peace; there is no evidence of any misconduct by him. We can see no impropriety under these facts. People v. Coughlin, 65 Mich. 704, 32 N.W. 905; Van Syoc v. State, 69 Neb. 520, 96 N.W. 266.

On April 28, 1952, the date the trial started, the appellant applied for a writ of habeas corpus ad testificandum to bring Albert Green from the penitentiary to testify on April 30, 1952. The state concluded its testimony on April 29th and appellant asked for a continuance, which was overruled. In overruling this motion, the court stated that the writ was mailed to Jefferson City on April 28th and he was informed that it had not been served; that appellant's present attorneys were appointed to defend appellant on October 1, 1951, and the application for the writ was not filed until the day the trial commenced; that the court felt that appellant had not been diligent in procuring his application for the witness Green and, therefore, refused the application for a continuance.

There is no record of a written application for a continuance. Section 545.710 RSMo 1949, V.A.M.S., states that a continuance may be granted either party in a criminal case for good cause shown. Section 545.720 RSMo 1949, V.A.M.S., states that a motion for a continuance on the part of a defendant on account of the absence of evidence must be supported by oath or affidavit showing the materiality of the evidence expected to be obtained, that due diligence had been used to obtain it, and what facts he believes the absent witness will prove.

There is nothing in this record showing any attempt on the part of the appellant to comply with section 545.720, supra. Under these circumstances, we think the trial court did not abuse its discretion in refusing the continuance. State v. Abbott, Mo.Sup., 245 S.W.2d 876; State v. Bockman, Mo.Sup., 251 S.W.2d 607.

Appellant contends that the court erred in admitting in evidence state's exhibits 1, 3, 4 and 5 for the reason there was no evidence connecting these exhibits with appellant.

State's exhibit number 1 was a handkerchief which was 'red and green with an odd color.' Emerson Robinson testified that it was worn as a mask by the person he thought was the appellant at the time of the robbery. Police Officers Houston Nutt and G. E. Miller identified it as the handkerchief taken from the appellant at the police station shortly after his arrest.

Robinson testified that exhibit 3 was a money bag or pocketbook and it was in a drawer at the Grapette Bottling Company at the time of the robbery, and that it was later returned by the police.

Exhibits 4 and 5 were checks that the police took from Albert Green who was arrested with the...