*1 Carey. jnry necessity the operate of it the to avoid does or offenses finding offense manner of what in a definite guilty. he determined the cannot accused is This [State v. error. reversible verdict, this McHenry, and constitutes the (Mo.) cases.] and While 207 S. W. duty in jury properly as their to court the instructed prosecuting officer, regard this it did nor did the not, of the attention should the error have call done, an jury and afford the returned when the verdict proof ample opportunity of In view correction. its any other appellant’s guilt of ground of the the and absence regrettable. For this of reversal error is this It sois reason the case reversed and remanded. must be ordered. All concur. Appellant.
THE FRANK CAREY, STATE Two, Division December 1925. BURGLARY AND
1. LARCENY: Sufficient Evidence. The evidence produced by tending guilty the State to show defendant burglarizing stealing crime of an oil station and therefrom fully opinion, Held, sufficiently is set out substantial guilty. to warrant a verdict of -,: Departure: Change. Amended Information: Immaterial original specifically failed to describe location building company charged of the oil which defendant there- having burglarized, charge in with but did watch that one dollars, property Banning, taken value of two of one Merrill building, money, property $104.32 said in addition to company. preliminary hearing waived oil The defendant justice peace, appear and was before a bound over to in the appeared court, to answer said information therein criminal Thereupon quash, filed a motion which was sustained. attorney prosecuting granted leave to an informa- file tion, upon which defendant was tried and con- and filed victed, and which described the location of the building, burglariously did enter said that defendant carry away money, property of said $104.32 did steal Held, company, watch. but omitted all reference oil SUPREME COURT OP MISSOURI, charge change the amended information made no material contained in err and the court did not
permitting it to be filed. *2 prosecuting 3. AMENDED INFORMATION: Without Affidavit. The attorney information, an is authorized to file an amended without except thereto, affidavit attached his own official oath. Preliminary Hearing; 4. -: Further Continued Waiver. The de- having jus- preliminary fendant waived a examination before the peace upon original tice of the he is not entitled preliminary hearing further information after said quashed, information, making is and an no material change by charge, is filed leave of court. by ARGUMENT TO Stock 5. JURY: Instructions. A reference prosecuting attorney evi- to the instructions circumstantial on error, dence as it is manifest “stock instructions” is not where had he used the word “usual” “standard” instead of “stock” there or n objection. could have been no Explain. -: Defendant’s Failure to 6. Defendant was arrested July away morning, or as he came from about four o’clock on station, burglarized, out the door of an oil which had been police $27 him was asked was taken from him. The who arrested any explanation got if made of where taken defendant he answered, doing station, and him or what he was in the oil objection. whatever,” and this evidence went in without “None subject by proper Held, comment counsel was a the evidence overruling State, an committed no error and the court for the attorney prosecuting argument objection in his remark police explanation jury to the when that: “He made no to the give.” arrested, explanation he can and there Charge: Separate AND LARCENY: Joint Verdict. BURGLARY 7. charges with count the defendant Where the guilty finding larceny, burglary him crimes a verdict of both punishment assessing specific separate for each is sufficient proper. J„ p. Burglary, 58, 1033, Juris-Cyc. Corpus C. n. 9 Section References: J., p. 1075, Law, 132, 1034, 16; Criminal 16 15; p. 13. n. C. n. Section 2235, 893, 32; p. p. 2241, p. 20; 566, 319, n. Section n. Section Section p. 907, 17; 2602, 1111, 2255, p. 86. In- 89; n. 897, n. Section Section n. New; J., 163, p. 646, Informations, 31 Section n. 56 C. dictments 427, p. New; p. 827, n. 17. Section n. 97 Section County. Appeal of Greene Court Criminal —No». Judge. White, L. Warren 463 1925. TEEM, OCTOBEE v. State Affirmed. Mosby appellant.
Irwin
for
& Dunn and
S.T.
(1)
improper
the State,
The
remarks of counsel for
which were
upon
nor
not rebuked
the court
withdrawn
prejudical
objection,
error,
constituted
defendant’s
judgment
16
should be reversed.
J.
C.
894;
Swisher,
1;
Lee,
State v.
State v.
66 Mo.
186 Mo.
App.
Pagals.
Upton,
167; State
Mo.
State v.
316;
v.
130
92
(2) support testimony a con- was insufficient *3 to the evidence demurrer viction, State’s Johnson, v. 209 Mo. have been sustained. State should 649; Gordon, 206 State Dines, Mo. 199 346; State v. v. 199’ 671; Lowe, Mo. State v. Francis, State v. Mo. 561; Primm, Mo. v. 368; State Glahn, State v. 97 547; 93 Mo. (3) 628. Howell, v. 100 Mo. The a- 368; Mo. State 98 it bad sub- information was because mended departure the affidavit filed with the stantial municipal judge. 1919; v. 3850, E. S. State Balch, Sec. 173; 181 v. Mo. State Schnettler, v. 392; Mo. State 178 App. 75 263. 424; Fuser, Mo. State Bonner, 178 Mo. v. (4) forth offense, did set affidavit The support being information, in law insufficient Hayward, quashed. 299; v. 83 Mo. State bewill latter App. 132; 45 Cornell, State v. 112 Mo. Essman, v. State App. Whitaker, 184; 75 Mo. App. Sec. 44; State Mo. (5) cannot be a- 1919. 3850, S. charging different from that offense an into mended and error information, in allowing Em- tó be done. State v. this committed App. 92 App. Jenkins, Mo. State v. 56; 45 Mo. berton, prelimi- (6) No 255 232. Walton, Mo. State 439; 464 COURT OF MISSOURI, SUPREME
State v. having granted hearing nary or waived under the having and defendant offered proof overruling such the court erred fact, quash. 1919; motion to R. 3848, Sec. S." State v. Mc- 212 210 Mo. Kee, Jeffries, Mo. 302; State 280 Mo. Dooms, 84. Attorney-General, Harry Robert Otto, L. Attorney-General Special Thomas, Assistant re- spondent.
(1) No affidavit was filed under the terms of Sec.
filing being
Piling
3850,
under
3760,
Section
thereof.
3850
be
having
Section
must with clerk
under
jurisdiction
of the court
attorney.
prosecuting
or with the
Secs. 3849,
though
(a)
R.
Even
S.
affidavit is made
lodged
prosecuting attorney,
may
with the
ignore
upon
it and file a valid information
his own in-
formation and
Sec.
R.
belief.
State v.
App.
Wright,-
1.13;
193 Mo.
ex
Rotter,
rel. v.
201
App.
Schnettler,
Mo. 173;
Mo.
Sykes,
Lawhorn,
Mo. 293.
(b)
materially
The amended information differed
original information and
did not tend to broaden
burglarized.
This amendment
in ac-
quash
defendant’s motion
cord with contentions
original information and did not
tend to broaden
issues,
may
(c)
Informations
be amended or substance at
time
matter
form
before trial.
rights
prejudice
to defendant’s
No
was caused
*4
3853;
R. S.
Sec.
amendment.
State v. Woodard, 273
(d)
1049.
The information
S. W.
follows the statute
approved
and is in an
form. R. S. 1919, Sec. 3305; State
Sprague,
411;
149 Mo.
Yandle,
State v.
State merely proceedings being hearing plea, any a to of probable guilt not a trial to and determine determine Langford, guilt State v. or innocence. W. 169. having pleaded general to Defendant, having gone issue and objection, trial without further
to waived any right preliminary hearing. to State v. Evans, Ferguson, 278 687; 270 S. W. State v. Mo. 119; (3) McNeal, 304 Mo. The State v. reference any to make failure of the defendant ex- planation upon was based arrested evidence. when argument, impeach evidently It in defend- used, guilt. story, of and as indication ant’s Alleged of counsel errors remarks for State objection having sufficient review, are not was no motion to strike out or re- made thereto. There quest reprimand. Cooper, State 271 471; S. W. Phillips, Pinson, Mo. 291 Mo. State v. (4) Mo. 632. McMullin, 170 339; State v. verdict burglary larceny guilty and of finds the defendant separate It assesses, information. punishment specific for each offense and is sufficient. Logan, 209 Mo. MeCune, State v. McHenry, 142 Mo. Rowe, 809.W. On-August Prosecuting 15, 1924,
RAILEY, C. County, Attorney of filed Greene criminal court county, information, which, an amended of without said jurat, signature caption, reads as follows: Prosecuting Attorney T. within Lincoln, “H. of .County Greene, of the State Missouri, for the under Hedg- the court that Herman informs of office his oath Carey, peth, Frank late J. DeMombrom day July, county on the 16th aforesaid, and state County of Greene and State 1924, at A. D. Mis- property of M. a certain Wilhoit souri, corporation organized Company, existing Oil Missouri, located on the laws of under Campbell corner State ‘and South northwest Sup. 311 Mo. —30. *5 SUPBEME COUBT OF MISSOURI, city Springfield, County,
streets in the Greene being building goods, Missouri, same a in which things wares, merchandise and other were then valuable kept deposited, and there and did then and there felon- burglariously iously and break into and enter with goods, intent the merchandise wares, and other valuable things building, being, feloniously in then and said there burglariously carry away, and take steal, and and thirty-two good hundred and one four dollars and cents, and lawful of the United of the States, value of thirty-two hundred and and four dollars cents, the property Ip. Company, said M. Wilhoit Oil a corporation, in aforesaid, said then and there feloniously being, burglariously and there then and did carry away, contrary and take steal, to the form of provided against in such cases made statute and and peace dignity and State.” appellant August 15, 1924, On a filed motion to quash which was overruled, day on the same thereafter defendant filed his mo- continuance, a which was tion for likewise overruled. day, formally on the same Thereafter, defendant was ar- plea guilty. raigned and entered of not On the same jury, day, before whom case tried, returned following verdict: into court jury, Carey find “We, the defendant Frank burglary larceny guilty charged in manner and form as punishment in the and assess penitentiary years burglary for at seven years larceny.” penitentiary five at Timely trial motions for a new arrest of judgment judg- were filed and overruled. Thereafter pronounced appeal and an rendered, sentence ment was granted this court. defendant testified, substance, Wilhoit
E. M. president Company Missouri, Oil of the M. Wilhoit Campbell filling at owned a station County, Springfield, Missouri; that on streets, Greene burglarized, July one of rear the station 16,1924, w'as y. Carey. n windows prized up open had and safe been broken the contents rifled. *6 police officer, testified,
O. W. a that he re- Hulse, go July 1924, 16, a call four m. on to to ceived about a. accompanied station; officer Webb him, the that "Wilhoit they standing in the found the defendant door of and sledge ly- punch a hammer and a were station; the that ing that station; door of on the floor of the the outer the open door of was battered; and an inner same safé was money; the he took an auto- that safe contained no that pistol the later defendant, from and took from matic spring-back including in cash, him a knife and about $27 paper pennies containing nickels; and some rolls that explanation money the taken, defendant as to made presence his cross-examination, nor there. On wit- standing open the that defendant ness testified police door of the that he walked toward station; up that resistance; made no the above car as it drove day-break. occurred about policeman, that, on a testified the morn- K.'Webb, July
ing E. Wilhoit of he called to the M. 1924, was 16, they up filling Hulse; officer that as drove station, with they stopped time, at that dark station, ran, meet one man them; came out that and defendant caught this that man and him; after he and witness ran Hedgpeth; above occurred Herman that his name was morning, it dark. o and was four ’clock the about Springfield, police tes- officer at a DeArmond, F. M. Hedgpeth and Billie De- Herman knew tified that he July night Mombrom; about ten o’clock on that place Tony Be on South 1924, he saw them Mates 15, at filling Campbell them at the sta- next that he saw Street; they morning following o’clock, four about tion the DeMom- he arrested roadster; that were in Ford then was arrest- twenty after defendant brom about minutes Hedgpeth, but he taken in cash was $57 ed; taken wrapped money; a little had no from DeMombrom. COURT MISSOURI, SUPREME OF y. Banning twenty years
Merrill testified that lie was Company by old, for the E. M. worked Wilhoit Oil day, employed July morning on and was so 16, working 1924; that he was at the station located at State Campbell up duty that it streets; to lock night July nine station; that o’clock about on the up 15, he locked that there station; said was some- up where near hand, on he locked it safe $100 company; that he next saw the station about four- thirty morning July stayed right that he across the street from the station and was awakened hearing a he dressed shot; that and went to station open, where found door and one of the windows open, which that he down; had nailed saw the marks prying window; that he saw there a tire tool lying driver, on win- screw outside below the *7 dow; that the safe had been hit some with instrument open; money and the door that of same was all the which night except he left in the safe the check for before, part $2.27, safe; had been taken from the that the of pennies were nickels and left the safe in the wrappers, similar to taken from defendant at the those wrappers time his were arrest. These secured various banks. employee company,
Nelson an of the oil Dickinson, testified that the loss sustained was $104.32. K. testified recalled,
W. Webb that the was money Hedgpeth paper money all taken from pursued. he money He had thrown down when had some other own; which he said that he was his chased about three the above that offi- station; blocks from Hedgpeth cer chase didn’t it was when the started. know evidence as follows: The for defendant was kept rooming Mary Bradley, Mrs. at who house that testified defendant roomed at Walnut, West 408% July her 16th, 1924; house on that she him' 15th and saw night paid July he 15th;-that about o’clock on the ten money left; his room and had some rent on that occasion paid amounting to two that DeMombrom his dollars. bill operated Wheelbarger, who a billiard H. hall in Springfield, he testified that loaned defendant $30 burglary; money evening that the before the loaned him paper silver, and included about four or five pennies wrapped dimes; nickels, dollars wrapped money that is used at hall at all he times; that given many were how rolls did know defendant. Carey, defendant, Frank testified, substance, morning July he arrested after 16, 1924, that was near the station; he had street that his at- crossed to the station and he saw two men tention was called run- just stepped up ning had door; out of the that he look police arrived; when the that he door turned and playing poker car; he had been walked that toward got evening with the he before, Wheel- barger game about he went 12:30 a. m. and ; that way he arrested; his home when that on made no money taken from arrest; his that the resistance to him Wheelbarger; he borrowed from that received was that Wheelbarger; wrapped change from that he left the the poker game 3:30 m. that he did not ; about use a. game; pennies carried a of the nickels or protect in order to threats, because of revolver life. appellant
. I. It contended evidence is verdict, that his demurrer insufficient to sustain of the case the evidence at the conclusion should have been sustained. very preceding fully in set evidence is out *8 repeated not be here. We are of
statement need opinion evidence offered there was substantial that fully jury was war State, sufficient convicting him thereunder on is ranted Evidence. l. c. Woodard, 1050; 273 W. [State S. sue. v. Tipton, Cox, v. 267 500; 307 Mo. State S. W. v. State v. Hamilton, 127;W. State Houston, 263 S. 884; State v. 114; Kleine, 263 S. W. State v. State v. 219;
263 W. S. 57; 249 Stark, S. W. State State Boes, 1019; 262 v. S. W. 470 SUPREME COURT OP MISSOURI,
State v.
238 S.
Affronti,
W.
State
106;
234
Brown,
S. W.
v. De
232
785;
Priest,
83; W.
S.
State v.
232
Bater,
1012;
W.
State v. Lasson,
the peace, July 17, 1924, and on was bound over to ap Court pear Criminal of Greene County, Missouri, answer said information. He appeared in the crim inal court and filed a aforesaid motion quash the above sustained. information, Thereupon the State file granted leave to the amended information here out. set It made no material change tofore orig inal and the court committed no error be permitting same to filed as amended. 3853, [Sec. 1919; R. S. State v. 267 S. c. Smith, l. 870; W. State v. 273 l. c. Woodard, 1049.] S. W. quash
The motion to the amended information without merit and was properly overruled.
III. The prosecuting attorney was authorized to file the amended the Criminal Court of County, Greene without any affidavit, except the oath of attorney State’s attached thereto. [Sec. Affidavit. 1919; R. S. 285 3760, Sykes, Mo. l. c. 27, Lawhorn, Mo. l. S. W. 250 c. 157 l. Schnettler, Mo. c. S. W. rel. State ex 201 Mo. l. Wright, App. c. App. l. c. Rotter, 113.] defendant,
IV.The waived having preliminary entitled examination heretofore stated, *9 Vol. Carey. preliminary hearing filing after the
further information, as there no change charge against m the material him. WaiverofPreliminaryHearing. c. 1048-9, l. [State Woodard, W. cited.] cases to is sufficient as both form
V. Tipton, l. c. [State 271 S. substance. Tracy, W. l. c. 243 State Yan Sprague, dle, 166 c. l. SufficientInformation. R. S. Mo. l. c. Sec. 1919.] appellant’s Complaint in is made brief that, VI . all in, counsel for the State the evidence made after part remarks: “Where no following knife sunk into a man’s heart or sees ArgumenttoJury. him shot or sees the into, sees broken give instructions on has to stock circumstantial the court ’’ evidence. object for defendant said: “We Counsel ” objection instructions.’ This ‘stock over- words by court. ruled if counsel for the that, manifest
It is had used “usual” or “standard” of “stock,” instead words discussing objection instruction, would have complaint interposed. The above is without merit and overruled.
' The court is likewise with error, VII. objection overruling following defendant’s ar- gument [defend- of counsel for State: “He explanation police -ant] made no to the ExplanationByDefendant. when he was arrested there and there is no give.” explanation can he testimony
Turning Hulse, to the O. W. we find following occurred examination State: Carey the time of the arrest did Mr. At
“Q. make explanation got you he where 472' SUPREME COURT OE MISSOURI, doing had been taken off himof or what E. M. "Wilhoit Oil Station? A. None whatever.” *10 objection,
This evidence went in without and was proper subject by of comment counsel for the State. foregoing, Aside from the we are at a loss to understand appellant injured legally by how ing have could show- explanation
that he made policeman no to the as to presence morning time near scene of the robbery. respect The trial court committed no error in foregoing matter.
VIII. defendant with burglary larceny single in a count. The verdict guilty aforesaid found defendant crimes, both separately specific punishment assessed for each Verdict. offense, [Sec. 3305, was sufficient. R. 1919; State l. Rowe, McCune, c. Logan, 209 Mo. l. c. 400-1; State Mo. l. c. 402; State McHenry, cited.] l. c. 808 and cases Appellant complains IX. of some other statements argument made counsel for the grounds case, but on consideration of same we find granting for a new trial. special complaint appellant’s
While no is made in given, carefully brief as to the instructions we have con- they properly sidered the same, and find that declare fully jurors law informed the to all the law necessary passing upon them to consider the case. opinion legally
We are of that defendant was upon judgment convicted substantial evidence. The be- Higbee, accordingly low is affirmed. C., concurs. foregoing opinion RAILEY, PER CURIAM The 0., adopted opinion as the of the court. All of the judges concur.