| Mo. | Nov 20, 1906
This cause is here upon appeal from a judgment of the circuit court of Chariton county convicting the defendant of murder of the second degree.This case was in this court on a former appeal, and is reported in 186 Mo. at page 151. On that appeal it was held by this court that the- information on which the defendant was tried and convicted was defective, in that in the concluding part thereof the prosecuting attorney omitted to use the words “upon his oath,” which were held essential in charging the crime of murder in the
After the reversal and remanding of said cause to the circuit court of Chariton county, at the September term, 1905, of the circuit court of said county, the prosecuting attorney of said county filed an amended information, based upon an amended affidavit of Robert Cox, charging the defendant with the crime of murder in the first degree for the killing of Rufus Cox by shooting him with a revolver at the said county on the 8th day of August, 1903. At the same term of said court the prosecuting attorney entered a nolle prosequi as to the charge of murder in the first degree, and elected to prosecute the defendant on the charge of murder in the second degree. At the February term, 1906, of said court, the defendant filed a motion to quash the information, which motion being overruled by the court the defendant filed an application for a continuance which was also overruled. The defendant then waived formal arraignment, entered a plea of not guilty and was put upon his trial.
It is conceded by both respondent and the appellant that the facts upon the former appeal are sufficiently stated to enable the court upon this appeal to determine the legal propositions disclosed by the record; therefore, we deem it unnecessary to burden this opinion with a re-statement of the evidence, and shall content ourselves with referring to the case of State v. Coleman, 186 Mo. 151" court="Mo." date_filed="1905-02-02" href="https://app.midpage.ai/document/state-v-coleman-8015270?utm_source=webapp" opinion_id="8015270">186 Mo. 151, where the controlling facts of this cause are fully recited.
At the close of the evidence the court gave 21 instructions, ten on behalf of the State and eleven on behalf of the defendant, and there were five other instructions requested by the defendant which were by the court refused. We have carefully read all of the instructions given and those refused in this cause and as the law applicable to this case was so fully discussed on the former appeal we see no necessity for burdening this
Upon the submission of the cause to the jury they returned a verdict finding the defendant guilty of murder of the second degree and assessing his punishment at imprisonment in the penitentiary for a term of twelve years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were rendered by the court in accordance with the verdict, and from this judgment the defendant prosecuted this appeal and the record is now before us for consideration.
. OPINION.
In the brief of appellant it is urged:
First. That the court erred in refusing to quash the amended information filed by the prosecuting attorney after said cause was remanded to the Chariton Circuit Court.
Second. That the court erred in denying the appellant’s application for a continuance.
Third. That the court erred in permitting counsel who had been employed in the case to assist the State’s representative to close the argument for the State over the objections and protests of the defendant.
The complaints as indicated above substantially embrace all the assignments of error contained in the brief of counsel for appellant. This cause having been before this court upon a former appeal, where the law and the facts were so fully discussed, doubtless furnishes a very good reason why learned counsel for appellant have limited their complaints of error to so few in number. We will treat the assignments of error accordingly as they are herein indicated.
I.
Upon the first proposition appellant complains that the court erred in overruling the defendant’s mo
It was ruled in State v. Emerson, 188 Mo. 412" court="Mo." date_filed="1905-05-16" href="https://app.midpage.ai/document/state-v-emerson-8015390?utm_source=webapp" opinion_id="8015390">188 Mo. 412, that the prosecuting attorney had the right, both at common law and under section 2891, to amend his information in matter of form or substance at any time, by leave of court, before the trial, and in this same case, upon the former appeal, it was clearly recognized that upon the remanding of this cause to the circuit court of Chariton county the prosecuting attorney would have the right to amend his information. Burgess, J., speaking for this court, said in that ease that “the information is invalid, and being so, the question may be properly raised for the first time in this court, and while it cannot he amended in this court, it may be amended as to matter of form or substance at any time by leave of court before trial.” But aside from the
It will be observed that the basis of this motion to quash is upon the ground that the original affidavit and information only charged the defendant with the crime of manslaughter, and therefore the prosecuting attorney had no right to file an amended information charging a higher grade of crime. The record in this cause nowhere' discloses a preservation by bill of exceptions of the original affidavit and information, and the only information which is disclosed by the record is the amended information upon which the defendant was tried. This amended information forms a part of the record proper and as there is nothing appearing upon the face of the information or in the record which in any way renders it invalid, it must be held sufficient. [State v. Finley, supra.]
H.
Upon the second proposition, as to the error complained of respecting the action of the court in overruling the application of the appellant for a continuance, it is sufficient to say that we have carefully read such application and all of the disclosures of the record in any w§iy appertaining to it, and in our opinion there was no error in the action of the court in denying such application for a continuance. The application was based upon the absence of two witnesses for the defendant, Miss Quinn Shannon, the stenographer on the former trial of this cause, and Wallace Fletcher. It is manifest
Further complaint is made at the action of the court in refusing to permit counsel for defendant to read in evidence the testimony of Henry Gottschalk, Sr., taken at the former trial of the cause and preserved in the bill of exceptions. The law authorizing the reading of evidence preserved by bill of exceptions in a former trial is embraced in section 3149, Revised Statutes 1899. It authorizes the reading of evidence so preserved by bill of exceptions in the same manner and with like effect, etc., as in case of a deposition. The record discloses that witness Gottschalk, whose testimony on the former trial preserved in the bill of exceptions the defendant sought to introduce, was present in the court room at the time of such offer; therefore, it is clear that from these disclosures of the record, the witness being present in court, there was no error in denying the offer of
III.
This brings us to the consideration of the only remaining complaint suggested in the brief of counsel for appellant, that is, that the court erred in permitting J. A. Collet, counsel assisting in the prosecution, to make the closing argument to the jury, over the defendant’s objections.
It was ruled by this court in case of State v. Stark, 72 Mo. 37" court="Mo." date_filed="1880-04-15" href="https://app.midpage.ai/document/state-v-stark-8006540?utm_source=webapp" opinion_id="8006540">72 Mo. 37, that if an assistant may be employed it follows that he may occupy any position in the trial of the cause assigned him by the prosecuting attorney. In that case the assistant counsel made both the opening and closing argument to the jury. In State v. Robb, 90 Mo. 30" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/state-v-robb-8008783?utm_source=webapp" opinion_id="8008783">90 Mo. 30, it was held that it was not error for such counsel to make the opening argument to the jury, and we are unable to discover any sound reason for interpreting the provisions of section 2627, Revised Statutes 1899, as authorizing the assistant counsel to make the opening argument and prohibiting such counsel from making the closing* argument. The language used in that section is that the prosecuting attorney must state the ease, and that counsel for the prosecution shall conclude the' argument. We take it that under the law counsel may be employed to assist the representative of the State and that the entire proceeding during the progress of the trial is under the immediate supervision of the court, and that the prosecuting attorney, as well as the counsel who may assist, in contemplation
In the motion for new trial error is assigned upon the giving and refusing of instructions by the court. The record before us discloses that the law declared by the court in this prosecution was embraced in 21 or 22 separate and distinct instructions, and in our opinion every phase of this case to which the testimony was applicable was covered by the instructions given on the part of the court. It is manifest that some of the instructions given were in fact more favorable to the defendant than he was entitled to under a strict technical application of legal principles. The instructions refused by the court were properly refused. Some of them were fully covered by instructions given and others did not correctly state the law.
There is complaint at instruction No. 7 given on the part of the State. An instruction upon the subject embraced in instruction No. 7 was before this court in the former appeal of this cause. The misleading features of it were suggested by this court, and we have analyzed the instructions given upon the retrial and find that the suggestions as to the misleading features of the declarations of law upon that subject were heeded and the instruction made to conform to the suggestions of this court upon the former appeal.