State v. Tunnell

Decision Date03 June 1927
Citation296 S.W. 423
PartiesSTATE v. TUNNELL.
CourtMissouri Supreme Court

Appeal from Circuit Court, Dallas County; C. H. Skinker, Judge.

Sam Tunnell was convicted of willfully and maliciously shooting into the dwelling house of another, and he appeals. Reversed and remanded.

G. S. Dugan, of Marshfield, and John S. Haymes, of Buffalo, for appellant.

North T. Gentry, Atty. Gen., and A. M. Meyer, Sp. Asst. Atty. Gen., for the State.

DAVIS, C.

On September 11, 1925, the prosecuting attorney of Webster county filed a verified information in the circuit court charging defendant with willfully and maliciously shooting, on June 4, 1925, into the dwelling house of one McBride situated in said county. The venue was changed from Webster to Dallas county on application of defendant, and, on a trial before the court and jury, the verdict returned found defendant guilty as charged, assessing his punishment at imprisonment in the penitentiary for two years. Defendant timely appealed from the judgment and sentence entered on the verdict.

The evidence on the part of the state tended to show that about 6 o'clock on the evening of June 4, 1925, in Webster county, five, six, or seven shots were fired toward the dwelling house of M. 0. McBride. McBride, on his way from the barn to the house, was startled by the report of a firearm, and the almost simultaneous spat of the bullet as it hit, causing the dog lying near to jump. Taking cover on the porch, McBride heard other shots, one of which hit the gable, puncturing the cornice. Two other bullets penetrated the side of the dwelling facing north, both piercing the boards and plaster, and traveling across the living room, one of which imbedded itself in the pantry wall, and the other entered the bookcase and lodged in a song book. Mrs. McBride was in the living room at the time the bullets passing within two or three feet of her. She recovered the bullet lodged in the song book, which was introduced in evidence; the testimony developing that it was steel jacketed, of .32 caliber, probably fired from an automatic. The only testimony found in the record that tends to connect defendant with shooting into the dwelling was given by Guy Rice, a 13 year old youth, who testified that he accompanied the 12 year old brother and the 20 year old sister of defendant from their home to that of Linn Jones to drive cows home. Just before the shooting, he observed defendant coming up the hill, traveling on foot, but did not see a firearm. Presently he heard firing, and discerned defendant shooting a pistol toward the McBride home. Defendant was then across the road from the dwelling. The time was about 6 o'clock in the evening. The defendant, about 100 yards away, was, during the firing, recognized by the boy. He had known him 3 or 4 years. The boy's testimony does not go further than showing the shooting by defendant occurred in June, 1925. He further stated that on reaching defendant's home immediately after the shooting he overheard a conversation between defendant and his mother, the mother saying, "I would have shot at him instead of the house," and defendant replying, "I could not see him but an instant; then he went into the house." The evidence further developed that previously defendant and McBride had had an altercation, defendant slapping McBride in the face, for which he was fined $5 and costs in a justice court. Other pertinent facts, if any, will later appear.

I. The first issue raised relates to the amendment of the information. The facts evolved in that regard show that on September 7, 1925, an information was filed in the Webster circuit court charging defendant with shooting into the dwelling house heretofore mentioned on June 8, 1925, with a rifle. On change of venue to Dallas county, on motion, the prosecuting attorney was permitted, after the jury had been impaneled and sworn and the trial begun on October 14, 1925, to amend the information by striking out of the information the word "rifle" where the same appeared therein and substituting in lieu thereof the words "revolver or pistol," and by striking out the figure "8th," after June where the same appeared therein, and by inserting in lieu thereof the figure "4th," as the date the offense was charged to have been committed.

Two sections of our statutes, to wit, section 3853, denominated statute of jeofails, and section 3908, Revised Statutes 1919, are germane to the question involved. Section 3853 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."

The pertinent portions of section 3908 say:

"No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: * * * or, fourth, for the omission of the words 'as appears by the record,' nor for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly."

With respect to the amendment of the information changing the date of the charging of the commission of the offense from June 8th to June 4, 1925, the trial court correctly ruled. Time was not of the essence of the offense, and, under the statute of jeofails, it was within the discretion of the trial court to permit the amendment to be made. However, even though the offense was alleged to have been committed on June 8, 1925, the state would have been permitted, on the trial, to show that the offense was committed on any other day within the statute of limitation. State v. Findley, 77 Mo. 338; State v. Bennett, 102 Mo. 356, 14 S. W. 865, 10 L. R. A. 717; State v. Moore, 203 Mo. 624, 102 S. W. 537.

It is said by defendant that the substitution of the words "revolver or pistol" for the word "rifle" prejudiced the substantial rights of defendant. The offense denounced by section 3277, Revised Statutes 1919, is that of willfully and maliciously shooting into a dwelling house. The statute in no wise limits the shooting into the dwelling house to a particular kind of firearm, but interdicts the shooting by means of any weapon or instrument that projects a missile capable of injury or damage. The act prohibited by the statute is the shooting into the dwelling house by means of a missile projected from some kind of weapon, not the shooting from a particular kind of weapon. It was then immaterial whether the dwelling house was shot into from a pistol or revolver, or from a rifle, so long as the shots came from one or the other. We rule that the substitution of the words was a matter of form and variance without prejudice to the substantial rights of defendant on the merits, and was amendable under section 3853, Revised Statutes 1919, on the trial at the discretion of the trial court. The record fails to show that defendant sought any delay, or offered or filed an affidavit for that purpose as the statute of jeofails requires. There is no showing that the amendments allowed constituted error. State v. Walton, 255 Mo. 232, 164 S. W. 211.

II. Defendant complains that the allowance of the amendments deprived him of a preliminary hearing in accordance with section 3848, Revised Statutes 1919. Defendant does not charge that he was refused a preliminary hearing on the information as originally filed, which the record tends to show was afforded him, but that he was not accorded a preliminary hearing on the charge contained in the amended information. The purpose of the preliminary examination, it is said in substance in State v. Jeffries, 210 Mo. 302, 109 S. W. 614, 14 Ann. Cas. 524, is to prevent suspected persons from escaping, and to secure their attendance at the trial, as well as to safeguard them from groundless and vindictive prosecutions. We have held that the amendment allowed affected the information only as to form and variance, and that it did not affect the substantive rights of defendant. If defendant's preliminary examination under the original information failed to fully accord him his rights, he should have shown such fact by plea in abatement and proof. State v. McKee, 212 Mo. 138, 110 S. W. 729; Buckley v. Hall, 215 Mo. 93, 114 S. W. 954. Having been accorded a preliminary examination on the information as originally filed, as the record tends to show, and as the absence of attack by plea in abatement and proof presumes, the amendment allowed as to form and variance does not render the preliminary hearing accorded on the original information futile, for the charge in the information both before and after the amendment was substantially the same charge. This ruling constitutes the preliminary hearing on the original information a hearing on the amended information. Defendant in this regard has not been denied his rights, for the probable cause found by the justice of the peace with respect to the original information extended to the amendment as made, which served the purpose of safeguarding defendant from a groundless or vindictive prosecution, and which complied with the statute.

III. Defendant charges the court with error in permitting him to be cross-examined by the state relative to a charge of felonious assault pending against him. It appears that defendant was charged with a felonious assault on McBride, the prosecuting witness, by shooting at him on June 4, 1925. Defendant testified on direct examination that he did not know...

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