The State v. Carey

• Citation: 278 S.W. 719,311 Mo. 461
• Decision Date: 22 December 1925
• Docket Number: 26465
• Parties: THE STATE v. FRANK CAREY, Appellant
• Court: Missouri Supreme Court

278 S.W. 719

311 Mo. 461

THE STATE v. FRANK CAREY, Appellant

No. 26465

Supreme Court of Missouri

December 22, 1925

Appeal from Criminal Court of Greene County; Hon. Warren L White, Judge.

Affirmed.

Irwin & Dunn and T. S. Mosby for appellant.

(1) The improper remarks of counsel for the State, which were not rebuked by the court nor withdrawn upon defendant's objection, constituted prejudicial error, for which the judgment should be reversed. 16 C. J. 894; State v Swisher, 186 Mo. 1; State v. Lee, 66 Mo. 167; State v. Upton, 130 Mo.App. 316; State v Pagals. 92 Mo. 311; State v. Woolward, 111 Mo. 248; State v. Ferguson, 152 Mo. 99; State v. James, 216 Mo. 394; State v. Clapper, 203 Mo. 549; State v. Kennedy, 177 Mo. 98; State v. Shipley, 174 Mo. 512; State v. Gillespie, 104 Mo.App. 400; State v. Fischer, 124 Mo. 460; State v. Horton, 247 Mo. 657; State v. Dixon, 253 S.W. 746. (2) The testimony was insufficient to support a conviction, and the demurrer to the State's evidence should have been sustained. State v. Johnson, 209 Mo. 346; State v. Dines, 206 Mo. 649; State v. Gordon, 199 Mo. 561; State v. Francis, 199 Mo. 671; State v. Lowe, 93 Mo. 547; State v. Glahn, 97 Mo. 368; State v. Primm, 98 Mo. 368; State v. Howell, 100 Mo. 628. (3) The amended information was bad because it was a substantial departure from the affidavit filed with the municipal judge. Sec. 3850, R. S. 1919; State v. Balch, 178 Mo. 392; State v. Schnettler, 181 Mo. 173; State v. Bonner, 178 Mo. 424; State v. Fuser, 75 Mo.App. 263. (4) The affidavit did not set forth the offense, and being insufficient in law to support the information, the latter will be quashed. State v. Hayward, 83 Mo. 299; State v. Essman, 112 Mo.App. 132; State v. Cornell, 45 Mo.App. 44; State v. Whitaker, 75 Mo.App. 184; Sec. 3850, R. S. 1919. (5) The information cannot be amended into charging an offense different from that charged in the original information, and error was committed in allowing this to be done. State v. Emberton, 45 Mo.App. 56; State v. Jenkins, 92 Mo.App. 439; State v. Walton, 255 Mo. 232. (6) No preliminary hearing having been granted or waived under the amended information, and defendant having offered proof of such fact, the court erred in overruling the motion to quash. Sec. 3848, R. S. 1919; State v. McKee, 212 Mo. 138; State v. Jeffries, 210 Mo. 302; State v. Dooms, 280 Mo. 84.

Robert W. Otto, Attorney-General, and Harry L. Thomas, Special Assistant Attorney-General for respondent.

(1) No affidavit was filed under the terms of Sec. 3850, the filing being under Section 3760, thereof. Filing under Section 3850 must be with clerk of the court having jurisdiction or with the prosecuting attorney. Secs. 3849, 3851, R. S. 1919. (a) Even though affidavit is made and lodged with the prosecuting attorney, he may ignore it and file a valid information upon his own information and belief. Sec. 3760, R. S. 1919; State v. Rotter, 193 Mo.App. 113; State ex rel. v. Wright, 201 Mo.App. 92; State v. Schnettler, 181 Mo. 173; State v. Sykes, 285 Mo. 25; State v. Lawhorn, 250 Mo. 293. (b) The amended information differed materially from the original information and did not tend to broaden the building burglarized. This amendment was in accord with contentions in defendant's motion to quash the original information and did not tend to broaden the issues. (c) Informations may be amended in matter of form or substance at any time before trial. No prejudice to defendant's rights was caused by the amendment. R. S. 1919, Sec. 3853; State v. Woodard, 273 S.W. 1049. (d) The information follows the statute and is in an approved form. R. S. 1919, Sec. 3305; State v. Sprague, 149 Mo. 411; State v. Yandle, 166 Mo. 589; State v. Tracy, 243 S.W. 178; State v. Tipton, 271 S.W. 56. (2) The records of the municipal court show that the charge was read to the defendants. The affidavit was in substance and effect the same as outlined in the information. Such records need not show the making of any plea, the proceedings being merely a hearing to determine probable guilt and not a trial to determine guilt or innocence. State v. Langford, 240 S.W. 169. Defendant, having pleaded to the general issue and having gone to trial without further objection, waived any right to a preliminary hearing. State v. Evans, 270 S.W. 687; State v. Ferguson, 278 Mo. 119; State v. McNeal, 304 Mo. 119. (3) The reference to the failure of the defendant to make any explanation when arrested was based upon evidence. It was evidently used, in argument, to impeach defendant's story, and not as any indication of his guilt. Alleged errors in the remarks of counsel for the State are not for review, no sufficient objection having been made thereto. There was no motion to strike out or request to reprimand. State v. Cooper, 271 S.W. 471; State v. Phillips, 233 Mo. 307; State v. Pinson, 291 Mo. 339; State v. McMullin, 170 Mo. 632. (4) The verdict finds the defendant guilty of burglary and larceny as charged in the information. It assesses, separate and specific punishment for each offense and is sufficient. State v. McCune, 209 Mo. 399; State v. Logan, 209 Mo. 401; State v. Rowe, 142 Mo. 439; State v. McHenry, 207 S.W. 809.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On August 15, 1924, the Prosecuting Attorney of Greene County, filed in the criminal court of said county, an amended information, which, without caption, signature and jurat, reads as follows:

"H. T. Lincoln, Prosecuting Attorney within and for the County of Greene, in the State of Missouri, under his oath of office informs the court that Herman Hedgpeth, W. J. DeMombrom and Frank Carey, late of the county and state aforesaid, on the 16th day of July, A. D. 1924, at the County of Greene and State of Missouri, a certain building the property of E. M. Wilhoit Oil Company, a corporation organized and existing under the laws of the State of Missouri, and located on the northwest corner of State and South Campbell streets in the city of Springfield, Greene County, Missouri, the same being a building in which goods, wares, merchandise and other valuable things were then and there kept and deposited, did then and there feloniously and burglariously break into and enter with intent the goods, wares, merchandise and other valuable things in said building, then and there being, feloniously and burglariously to steal, take and carry away, and one hundred and four dollars and thirty-two cents, good and lawful money of the United States, of the value of one hundred and four dollars and thirty-two cents, the property of the said E. M. Wilhoit Oil Company, a corporation, as aforesaid, in said building then and there being, then and there feloniously and burglariously did steal, take and carry away, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

On August 15, 1924, appellant filed a motion to quash the amended information, which was overruled, and thereafter on the same day defendant filed his motion for a continuance, which was likewise overruled. Thereafter, on the same day, defendant was formally arraigned and entered a plea of not guilty. On the same day, the jury, before whom the case was tried, returned into court the following verdict:

"We, the jury, find the defendant Frank Carey guilty of burglary and larceny in manner and form as charged in the information and assess his punishment at seven years in the penitentiary for the burglary and at five years in the penitentiary for the larceny."

Timely motions for a new trial and in arrest of judgment were filed and overruled. Thereafter judgment was rendered, sentence pronounced and an appeal granted defendant to this court.

E. M. Wilhoit testified, in substance, that he was president of the E. M. Wilhoit Oil Company of Missouri, which owned a filling station at State and Campbell streets, in Springfield, Greene County, Missouri; that on July 16, 1924, the station was burglarized, one of the rear windows prized up and a safe had been broken open and the contents rifled.

O. W. Hulse, a police officer, testified, that he received a call about four A. M. on July 16, 1924, to go to the Wilhoit station; that officer Webb accompanied him, and they found the defendant standing in the door of the station; that a sledge hammer and a punch were lying on the floor of the station; that the outer door of the safe was open and an inner door of same was battered; that the safe contained no money; that he took an automatic pistol from the defendant, and later took from him a spring-back knife and about $ 27 in cash, including some paper rolls containing pennies and nickels; that defendant made no explanation as to the money taken, nor as to his presence there. On cross-examination, witness testified that defendant was standing in the open door of the station; that he walked toward the police car as it drove up and made no resistance; that the above occurred about day-break.

W. K. Webb, a policeman, testified that, on the morning of July 16, 1924, he was called to the E. M. Wilhoit filling station, with officer Hulse; that as they drove up to the station, which was dark at that time, they stopped and defendant came out to meet them; that one man ran, and witness ran after him; that he caught this man and his name was Herman Hedgpeth; that the above occurred about four o'clock in the morning, and it was dark.

F. M DeArmond, a police officer at Springfield, testified that he knew Herman Hedgpeth and Billie DeMombrom; that about ten o'clock on the night of July 15, 1924, he saw them at Tony De Mates place on South Campbell Street; that he next saw them at the filling station the following morning about four o'clock, and they were then in a Ford...