State v. ThompsonState v. Thompson
- Reporters:
- ,
- Before:
- Eager
On this appeal we consider the propriety of an order overruling defendant’s motion to vacate the judgment of his conviction and a sentence of twenty years. No hearing was held, but the questions which we determine here are purely of law. It is necessary to state in some detail the proceedings of record. The motion to vacate was filed on December 19, 1963, and overruled on January 8, 1964. The original notice of appeal was late, but this court granted leave to file a notice of appeal under Rule 28.07, V.A.M.R., and such was filed.
Defendant was arrested on a warrant stating the charge against him as attempted robbery; the felony complaint charged the attempted robbery of one Murreldean May Archer. Defendant first waived a preliminary hearing and was bound over to the Circuit Court; there, on March 30, 1961, an information was filed charging that defendant did “ * * * wilfully, unlawfully and feloniously, make an assault in and upon one Murreldean May Archer, and did thеn and there attempt to rob and take from ‘her person valuable property in the presence of and against the will of the said Murreldean May Archer, by putting her in fear of some immediate injury to her person, and did then and there fail in the perpetration thereof, * * On the same day defendant, by counsel, moved to have the cause remanded to the Magistrate Court for a preliminary hearing, and it was so remanded. A preliminary hearing was held and defendant was again bound over to the Circuit Court on May 4, 1961. The State’s brief states that the original information was then refiled in the Circuit Court on May 5, 1961, and we shall assume this to be the fact, although the rеfiling is not shown in our transcript. On August 28, 1961, an amended information was filed charging defendant with assault with malice with a dangerous and deadly weapon; we quote the following from that document: “ * * * did then and there in and upon one Murreldean May Archer, feloniously, on purpose and of his malice aforethought, make an assault and did then and there, on purpose and of his malice aforethought, feloniously assault, beat, wound and stab, the said Murreldean May Archer, with a knife, which was then and there a dangerous and deadly weapon likely to produce death and great bodily harm, which knife he, the said Robert Louis Thompson, then and there had and held in his hand, with intent thеn and there, the said Robert Louis Thompson, on purpose and of his malice aforethought, feloniously to rob the said Murreldean May Archer, * *
The case was called for trial on October 30, 1961, and just prior to trial defendant’s counsel moved to dismiss the charge against defendant for the reasons: “ * * * that said charge does not state a charge upon
The case was tried by the court, upon waiver of a jury. The full trial transcript has been brought here on this appeal, аnd defendant has been represented by counsel. It will not be necessary to state the evidence in any detail. There was some sort of altercation and physical embroilment between the defendant and one Murreldean May Archer on the evening of March 23, 1961, in a Springfield laundromat. She testified that as she workеd at a tub or bench defendant entered the place, walked behind her, grabbed her and swung her around saying “this is a robbery”; that he had a knife in his hand, that she screamed and fought, that he stabbed her in the chest and cut her at other places, but she broke loose and ran outside; that this man, whom she positively identified as the defendant, then ran out the back door; that her purse was on a chair nearby and she later recovered it. She denied ever knowing or having had anything to do with defendant previously. Defendant, a negro, testifying in his own behalf, stated: that this young woman, using a different name, had called him and had driven to his home in an effort to make dates with him, and that he, though seeking to avoid her because of unconnected prior troubles, had met her at the laundromat by appointment; further, that a brief conversation ensued, that he indicated that he did not wish to become involved, and that she took his knife which was protruding from his “watchpocket” and opened it; that he reаched for the knife and cut his finger; that he grabbed her wrist and as they struggled she fell up against a washer or dryer, and then started running and screaming; the knife dropped and he picked it up and left. Essentially, he testified that he did not intentionally stab her or cut her and that he had no intention of robbing her or harming her. The evidence, which was in much greater detail than this recital, might have been appropriate to a charge of attempted robbery or to one of assault with a deadly weapon.
The court found defendant guilty “of attempted robbery as charged in the information.” That recital appeared in the official judgment record written by thе clerk; on the judge’s minutes the notation was that the court found the defendant “guilty as charged in the information.” The formal record of the judgment thus appeared as a conviction for “attempted robbery.” Shortly before the case was argued here on this appeal, over the objection of defendant’s сounsel, and after hearing the testimony of the clerk, the judgment record was ordered corrected nunc pro tunc to show that defendant was tried and convicted of the crime of assault with malice with intent to rob. We shall not reach the question of the propriety of the method followed in making that order (which is complained of here), for we find a fatal error in the record prior to that time.
There can be no doubt whatever that from the filing of the felony complaint in the Magistrate Court until the filing of
The amended information follows very specifically the wording of § 559.180, which is often referred to as the “аssault with malice” section of the statutes. This section appears in a different classification, namely, “Offenses Against Persons,” Chapter 559. In the amended information the “assault” became, for the first time, the dominant charge, coupled with allegations of malice and the use of a deadly weapon, and with speсific allegations that defendant did “ * * * stab the said * * * with a knife * * * ”; the phrase “with intent * * * to rob * * as used there, was and is merely an allegation of a part of the required statutory intent accompanying the assault. Even a casual reading of the quoted portions of the original and amended informations will show that the respectivе charges are of substantially distinct offenses.
Section 545.290, relied on largely by the State as justifying the amendment and sometimes referred to as the statute of jeo-failes, provides generally that an information may be amended in form or substance by leave of court before trial when such can be done without prejudice to the substantial rights of the defendant on the merits. But § 545.300, the very next section, specifically provides as follows: “An information may be amended either as to form or substance at any time before the jury is sworn, but no such amendment shall be allowed as would operate to charge an offense different from that chargеd or attempted to be charged in the original information.” And our Criminal Rule 24.02 is as follows: “The court may permit an information to be amended or an information to be substituted for an indictment at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” It will bе noted that this rule fixes two conjunctive requirements, namely, that no additional or different offense be charged and that substantial rights be not prejudiced.
In addition to these specific requirements of the rule and statute, our courts have held repeatedly that a different and distinct offense may not be charged by way of an amended information. State v. Jenkins, 92 Mo.App. 439; State v. Strickler, Mo.App., 224 S.W.2d 133; State v. Fletcher,
227
Mo.App. 321, 51 S.W.2d 170; State v. Walton, 255 Mo. 232, 164 S.W. 211; State v. Mandell, 353 Mo. 502, 183 S.W.2d 59. In Mandell, supra, the court said, at loc. cit. 61: “A prosecutor, pursuant to secs. 3898 and 3953, Mo.Rev.St.Ann., Rev. St.Mo.1939, may with leave of court amend an information either in form or substance at any time before a jury is sworn to try the case. This applies to informations filed in lieu of indictments as well as to informations filed after a defendant has had a prеliminary hearing. The substitute information must of course charge the same crime
The situation here is materially different from that in those cases where the courts have permitted the filing of amended in-formations setting up prior convictions in order to invoke the Habitual Criminal Statute. State v. Ninemires, Mo., 306 S.W.2d 527; State v. Nolan, Mo., 316 S.W.2d 630; State v. Miller, Mo., 202 S.W.2d 887; State v. Wilson, Mo., 349 S.W.2d 934. Under such circumstances, the amended information does not charge a different offense but merely goes to the matter of punishment.
This defendant would have been entitled to a preliminary hearing upon the charge of assault with malice had it been proрerly charged, but that is now immaterial. The new charge could not legally be engrafted upon the old one, and it must fall. The State cites and relies in part upon the case of State v. Taylor, Mo., 375 S.W.2d 58. There an information was substituted for an indictment, the only change being in the name of the purchaser of a narcotic. It was held thаt this did not constitute a charge of a different offense, largely because the identity of the purchaser was not even an essential element of the crime, but also because the real identity of the purchaser was not in dispute and was definitely known to the defendant. The State quotes the following statement from thаt opinion, loe. cit. 63: “The test of prejudice is whether a defense under the charge as originally made would be equally available after the amendment and whether defendant’s evidence would be equally applicable after as well as before the amendment.” The situation in Taylor was materially different frоm ours. The court there first determined that the second information did not state a different offense, saying that there was “ * * * no change either in the nature of the offense charged or in the punishment * * *.” It then proceeded to consider the question of prejudice, the second requirement of Rule 24.02, which we need not reaсh. In the present case there was an amendment introducing a new and distinct charge which is expressly prohibited by § 545.300 and Rule 24.02, regardless of prejudice. Taylor is in nowise controlling here. We may say, however, that we hardly see how a defendant could fail to have been prejudiced when, as here, he was put on trial in suсh a confused situation and where he was tried on a new charge for which he could have received a life sentence as contrasted with a maximum term of ten years on the original charge.
Under these circumstances, we do not reach certain questions briefed, including the sufficiency of the evidence, the validity of the nunc pro tunc correction of the judgment, or the failure of the trial court to file an opinion or give declarations of law under Criminal Rule 26.01(c). With reference to the nunc pro tunc order, it is immaterial here whether the method of its accomplishment was valid or not, for the very charge upon which it wаs based (i. e., the amended information) was not permissible.
Counsel for the State urge that if we hold the conviction for assault invalid, we should uphold the judgment as a conviction for attempted robbery based upon the original information and reduce the sentence; thus, they say, the defendant
We shall reverse this judgment and remand the defendant to the custody of the Sheriff of Greene County. The trial court is directed to quash (or dismiss) the amended information as an impermissible pleading in this cause. Under the authority of § 545.110 and the cases of State v. Melvin, 166 Mo. 565, 66 S.W. 534, and State v. Mayer, 209 Mo. 391, 107 S.W. 1085, the original information for attеmpted robbery was merely suspended, since it was not actually quashed as the statute permitted. Although § 545.110 refers specifically to indictments, proceedings by indictment and by information are for many purposes interchangeable, and we regard the statute as applicable. Hence, upon the remand, the Statе may proceed further upon the original information, it may dismiss the cause and file a new information subject to any possible question of limitations, or it may proceed otherwise, as it may see fit. It may not proceed further in this cause on any charge except that of attempted robbery.
The judgment is reversed and the cause is remanded for further proceedings as indicated in this opinion. The defendant is remanded to the custody of the Sheriff of Greene County.
All of the Judges concur.
Notes
. All statutory citations will refer to that revision.