*1 96
This embodies rea instruction tbe true doctrine as to rule of sonable doubt criminal v. 220 Mo. l. c. Nerzinger, cases. [State 119 S. l. And, having given W. c. instruction 383.] request of refusing the State, the court commit error defendant’s E, subject-matter. Instruction which covered same (2d) v. 319 Hicks, Mo. 3 W. [State S. 230.] and the approved are both in form, verdict prejudicial we find no procеedings. judgment error trial accordingly Cooley, affirmed. CC., Davis and concur. IIenwood, C., PER foregoing opinion by adopt- CURIAM: —The concur; opinion J., J., White, ed as the P. Blair, the court. Walker, J., absent. Raymond
The State Appellant. S. W. Riddle, (2d) v. 179. 23 Two,
Division December 1929. *2 Cope appellant. & Tedriah for T)on Assistant el, Pnrleet, Attorney-General,
Stratton Short respondent. Attorney-General,
DAYIS, C. In an filed in the Circuit Court of ‘But- County by prosecuting attorney, ler defendant was charged with robbery degree. in him the first returned a verdict finding charged in information, guilty and his punishment assessed years. period five for a penitentiary thq in State imprisonment appealed. Defendant warrants State part submitted The evidence sixty- between Anderson, M. J. July 1928, one finding that, on Qulin, in the town a age, operated store seventy years of еight and sleeping building as occupied the store county. He also Butler July midnight on eleven-thirty quarters. Between p. m., Waller. Lincoln conversing' one his store in Anderson was overalls, entered in conversing, man, they were thus While your up commanded, “Throw his hands pistol store with and, man, grappled with the you.” Anderson I shoot hands or will scuffling, Anderson While the counter. bеhind scuffling, they fell the knee were man’s overalls wet he felt that said that during consummation of frequently spoke man down. Qulin age lived twenty years of and had robbery. Defendant was him had known for seven that he years. Anderson said about ten An- day the street. defendant that eight years. He had seen knowledge recognized voice, of his best derson said knowledge. The record of his voice to the best was defendant’s shows: you man that robbed “Q. You the voice Yes, Raymond A. sir. Riddle’s? say? A. He
“Q. gun you, did he what put When you.’ I will up your hands or shoot ‘Throw A. you recognize minute? To the best “Q. voice Did ’’ I my knowledge, did. pistol, over the head with the and then The man hit Anderson open pistol made him the safe. The man covered with thе lights. $221. He robbed Anderson of made Anderson turn out *4 room, and, obtaining back after He conducted Anderson the into wire, Subsequently, and fled via the back door. An- wired his hands Hoyle wire and went the home of derson loosened the to one and told robbery. telling Hoyle him of He did not remember the that he the was. who robber He did not know whether or did know Hoyle night recognized he that he the voice of told that the man. justice morning he with of the The next tallied the who peace, issued charging- and robbery. an information defendant Waller with the justice right he He told the that did not know the then robber. The recognized time Anderson ever said that he first that the voice preliminary was the robber at the trial. The reсord shows: “Q. you Did statement morning make a there that pres- just you of the man mentioned ence that could not tell who it was you, robbed was a man the that it about size that Fred Piatt, and you clothes, recognize he had on dark but that could that him? was, IA. not tell who I could because could it not see his face. “Q. boy yon swearing same Are to this that here is you me, A. familiar boy described to officers? His voice was knowledge my it was his voice. and to the best ‘‘Q. you he think his Tell the words said that made was voice. it up your recog- I hands,’ A. it said, When he ‘Throw seemed like nized his voice.” my knowledge “I you to the his
Anderson told best of was during say.” repeatedly is all I That can said voice. face, that he his his examinаtion did not see that to best of his knowledge Anderson said that robber was defendant’s voice. pistol put him on the arm with the and the arm out of hammered commission.
Harley State,- who lived across the Pace, witness for the from street lights that, just night went store, out, testified before the robbery, porch, he saw a man the store who looked across at twice, opened lights after in, then door and went and went light each a flash was flashed window. man he out, at saw not look all at like defendant. Pace had been in bed and was aroused, man, and after he noticed the returned to he bed. The man Pace saw fleshier few was than defendant inches shorter. Knee, State, filling William witness testified he that ran Qulin. evening night station He knew On defendant. p. eight robbed, Anderson was about Lincoln defendant and m., filling get gasoline. Waller at the station to were While one of sitting standing them ear and the other with his foot on filling fender, witness inside the station about twelve feet them, heard he one “You other,. going to the are not you?” out, back are replied, “Hell, оther No!” Defendant blue overalls. dressed in About two trial, weeks before the de- fendant told witness he would kill him if he testified. The evidence developed that witness testified as above preliminary related at the hearing, feelings two weeks about trial hard repair arose and the between defendant witness over the of an auto- by defendant, mobile of the witness and it was after kill him if fendant said would he testified. day
Howard Yandover for the testified, State, following robbery, approached home, witness’s and he said to “Loan defendant, money,” me some just laughed. and defendant Witness’s sister then asked defendant “what wanted to knock the for,” old man head replied, ought “He up have stuck his hands.” Witness stated all of them were joking thought nothing about it. *5 for Stroud,
Herschel testified State, that, night of the robbery, boys drove dance, four to a two miles or more charged quarter a Qulin, them each. On the way to the car and engine of the road drowned the the water across the dance, it water and came waded into the pulled Defendant they were out. boys, dance tops. was to return to the his shoe He a little over large of water around a amount appear. to There was failed but he Qulin time. that at Anderson came to his Hoyle the State that testified for
Witness robbery. hour an after apprised him of the About house him found in bed and home where he he to defendant’s robbery wеnt up. returned with search warrant and Later, deputy him woke any money gun. or a find his home. He did not searched Deputy testified that he aided in ex- State, Sheriff for the Piatt, night he that ecuting the and that examined defend- warrant, search shoes; they looked they were wet and like he had overalls and ant’s cross-examination, wading in witness said with them. On been wаter peace make, justice heard Anderson while before the of the he that he did to the effect that know morning, the next a statement who was that robbed him. alibi. testimony establish an His tended to night stated he came home near eleven o’clock that
mother that store, bed. to She later heard racket at Anderson’s but de- went was in bed. fendant peace that, appeared justice testified be- when Anderson morning following him him
fore Anderson told robbery, identify was unable him. the fellow that robbed De- that fendant, Irvin Waller Ander- Piatt and were there time. at that ap- son was that he could familiar, said to the voice ply any particular person. that voice to Waller, cashier, bank
Irvin stated he heard state Anderson justice’s morning identify officethe unable at next the man. against defendant, Waller,
Lincoln informed testified that lights he was the store in, when the robber came that when the slipped were turned out he door, back out that the robber defendant. The robber was heavier and wore a dark . suit dark justice’s clothes and mask. heard say He at of- morning next fice the he did robbed not know who him. Defendant’s father testified that defendant came home about p. m., night eleven and was bed after that. He heard Ander- justice officeof morning robbery son after the could not tell who was. taking Defendant testified and boys told about to the dance drowning engine in the watеr, being pulled well as out. returning engine home again On he said again drowned and he waded water fix it. He into came home and went to bed. He being store supper at Anderson’s after denied night taking
102 money robbery knowing anything from him or until about morning. They justice he next took heard say there he Defend- know robbed him. who judged night he ant returned between eleven home that ten ánd
o’clock.
The State justice peace, offered evidence in rebuttal. The being reputation after qualified, said the of for truth defendant veracity was bad. cross-examination, prosecuting On he said the at- torney recently being reputation said was bad. On that defendant’s pressed although person, could name other no' sаid others had said so. Huey testified, being repu-
Witness qualified, that defendant’s veracity tation for truth and was bad. Witness then said he did not think fight he would a lie, tell defendant would when he but that drunk. reputation
Witness veracity bad, Johns said his truth for cross-examination, but he said “Well, I don’t know his about telling truthfulness. As his far as the truth I concerned, don’t know that.” about Witness then said that had defendаnt once told him a lie. seemingly
I. Defendant does not contend the evidence fails corpus is, delicti, perpetration show of the crime of robbery, but, even if did, the contention would 0j aYaj^ corpus no for evidence as lecti tends to challenge establish it. pro- Defendant’s is that bative evidence in clearly the record fаils to connect defendant with robbery alleged. as
Knowledge of a person fact is through communicated to one or senses, more of the five which hearing, seeing, feeling, smelling are tasting. In persons, developed some sense is more acute or more than in others. However, cannot courts undertake as a mat- testimony tеr of law witness, of a based on one senses, of his probative no has value. In its consideration of the and cir- facts cumstances, may jury probative conclude without value, that it is so because the is the trier the facts. of Defendant deny does seem to that it would have been direct evidence of that fact, if Anderson had testified thаt he identified defendant as the sight. by robber means of is none the less direct It evidence that by he identified defendant his voice. The force of the identification by of means his a question defendant of voice was of fact and with- province of jury, and, the facts as 'made a case, submissible weight testimony jury. was for the The identification wholly deрend upon did -not circumstantial evidence, as contends, identification person by of a means though identification, Ms voice is direct evidence of much so as through sight. S. the identification v. 300 W. Bell, had been [State 504.]
There is no that Anderson doubt but that the record establishes perpetrator robbery. identified defendant as the His testi- *7 mony, identification, by relative somewhat weakened the to was my knowledge,” reiterated statement, “to the of well as best as by analyzation facts testimony other an of the shows developed, but that person he meant was and testified that defendant the who robbed night. my knowledge’” that The “to the best of meant statement possible that was mistaken, knowledge, it he was that his as but well as his on belief, knowledge, based his ivas that defendant had effect, him. In robbed was familiar testified that he with night, defendant’s the voice, that the voice familiar but recognized time he first the voice as of defendant that of the robber preliminary testimony hearing day. was at the the next This equivalent my to saying, to or as Anderson knowledge, “to knowledge my the best of his it was defendant’s voice.” While testimony by testimony was somewhat weakened his own morning said the next was, could not tell because who it by testimony could see his face, and of the Pace for the State lights porch just the man he saw on the before went the out- look at defendant, all like nevertheless the evidеnce for the a substantially State as whole robbery, connected the rendering jury. thus the cause submissible to the It follows that the determination of a is province, controverted fact our without and we finding jury. must submit to the of the The demurrers to evi- properly dence were overruled.
II. The defective, information is said to be because it omitted conclude, in 38, to accordance with the mandate of Section Article ofVI, Missouri “against peace Constitution, dignity of
the State.” develops The record the information conclude, that, failed to so after the had jury been sworn, selected and and after the defendant had filed quash ground motion a to it on the failed to charge any him with crime under law, which motion quash overruled, permitted the court the court the State to amend by adding the information thereto the words omitted. Consequently, question the real in issue does involve the of defectiveness information, except incidentally, but involves the action of the trial permitting tidal, court the information to be amеnded on jury. swearing of after the statutes,
The permitted amendment an is information by proper subject amendment, trial, to the however, is a or termination of of substance whether the is matter amendment substance, If requested form. involves matter amendment If recite, is matter of be the trial. the information cannot amended on form, statutes, properly allowed. We amendment concluding thereof, necessary. portion portions or such as are Section Statutes reads: Revised amended, in any may “And or matter of affidavit be information any by trial, leave of court before form substance at time variance, the trial to all matters of form and at the dis- prejudice cretion -when court, of the the same can be done without rights defendant, substantial and no amend- merits, delay trial, except any shall instance of ment cause at the good defendant for cause shown affidavit.” by portion A page. 195, of Section Laws reads: 3908a, may “An be as to form amended either or substance any sworn, time no such shall аmendment operate charge be allowed as would an offense different from that *8 charged or attempted charged original in information.” to he the
Section 3908a, permitting trial, is in amendments the har- mony may with Section 3853. To this one be said he declar- extent atory of permitting However, the thus other, both to stand. Section 3853 may advises an information not be amended to matter of substance on permitted, trial, the trial. The on the an amend- court ‘‘ of ment the by adding against words, peace the. the and ’’ dignity of question the follows: State. The Did amendment form involve a of or a of matter matter substance!
We think “against peace the there no doubt but the phrase, is dignity State,” аnd of the is an essential in an averment indictment 38, or information. Constitution; VI, Art. Missouri State v. [Sec. Ulrich, 96 Mo. 70 App. 689, averments, W. S. Essential how- 933.] ever, may be or phrase either matters of form The substance. is not of itself a dependent of mere facts, conclusion, up- statement is on the facts in charging the the indictment or information crime. charged It is thе facts in the or indictment information —not the conclusion—that determine and establish "withwhich that the act charged against peace dignity fendant stands is the of the State. phrase, The omission of charged the so far as the facts are concerned, any would not take right, impair nor nor confuse in Moreover, him his defense. such amendment would not tend meaning charge give alter the the the of State advantage, an facts and with respect the circumstances introduced the alleged develop crime whether against peace would or not the act was the dignity From of the State. we have what it follows the “against phrase, peace dignity State,” of while es- an
IOS resulting of an in- form, matter is a mere averment, sential by adding words on trial and may be amended formation 680, 225 Adkins, State v. Mo. While jury is sworn. after the reasoning in precisely point, in we think the found not 981, S. is W. supports our conclusions. concurring of opinion J., Williamson, did err. the trial court amendment, not permitting In defective, information is because said III. It is in the crime was committed Butler body allege in the thereof not margin The county, Missouri. information shows County, consequent- Missouri, Butler the venue to be unnecessary body to aver the venue of ly, it was 3900, R. S. information. [Secs. 1919.] against of many been ruled the contention dé- times question has it. v. 232 Mo. McDonough, not discuss and we need [State fendant, cases cited 545, and collation of under Secs. 134 W. S. 3908.] finally complains as follows: num-
IY. Defendant “Instruction for the reason based 1 is information. bered erroneous allege The information does the crime was com- County of Butler and Missouri, mitted State of requires instruction to so find before convicted.” can be reading evident, preceding paragraph from a of this It is many complaint is well taken. As margin have we opinion, that equivalent, under the venue stated held, the times body venue in the information. to an averment of Statute, rendering thus information, was based instruction complaint untenable. proper the record shows the remainder
Y. An examination *9 from error. free be Cooley, CC., Henwood and concur. is affirmed. judgment opinion by foregoing Davis, C., adopted PER CURIAM:.—The Walicer, judges except concur, All of the of the court. opinion absent. J., Appellant. (2d) 23 S.W. 22. H. v. R. Stogsdill,
The State Two, 11, 1929. December Division