State v. Whittington

379 S.W.2d 518, 1964 Mo. LEXIS 740
CourtSupreme Court of Missouri
DecidedJune 8, 1964
DocketNo. 50151
StatusPublished
Cited by1 cases

This text of 379 S.W.2d 518 (State v. Whittington) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Whittington, 379 S.W.2d 518, 1964 Mo. LEXIS 740 (Mo. 1964).

Opinion

STOCKARD, Commissioner.

James Curtis Whittington was found guilty by a jury of the felony of selling marijuana in violation of Section 195.020 RSMo 1959, V.A.M.S., and his punishment was assessed by the jury at confinement in a state correctional institution for a term of five years. He has appealed from the judgment entered pursuant to the verdict. No brief has been filed in this court on his behalf so we review the assignments of error properly presented in the motion for new trial.

Walter Strickland, who was also known as Robert White and who admitted that he had been a drug addict, testified on behalf of the State that at about one o’clock in the afternoon of August 16, 1961, he and James Parker went to 4257 Delmar where appellant lived; that he, Strickland, asked appellant for marijuana; that appellant took some marijuana from a large envelope and placed it in a small brown envelope and gave it to Strickland; and that he, Strickland, paid appellant four dollars therefor. The small brown envelope and its contents were introduced in evidence after a chemist testified that the contents consisted of 1.89 grains of marijuana.

From the above brief statement of the essential portions of the evidence presented by the State, it is readily apparent [520]*520that there is no merit to appellant’s contention that the trial court erred in refusing to direct a verdict of acquittal.

Appellant asserts that “the court erred in overruling his objection to testimony offered by one Walter Strickland on the ground that said witness, in pre-trial deposition, had erroneously stated his name to be another, thereby denying to defendant the right to discovery inherent in such procedure.”

It appears from the transcript that the State had endorsed on the indictment the name of Robert White as a witness. On December 14, 1962, prior to trial which started on March 4, 1963, appellant took the deposition of the person identified as Robert White, and in his deposition this witness testified that his name was Robert White and that he lived at 1300 Burd Street. After the jury was selected but before any testimony was taken, appellant requested and was permitted to examine Robert White out of the presence of the jury. At that time he testified that his name was Walter Strickland and that he had previously on deposition given his name as Robert White because “that is the name the police knew me by,” and that he had given the name he “worked under.” At the conclusion of this examination appellant moved to “disqualify the State’s witness, namely Robert White, * * * for the reason that the defendant is deprived of his constitutional rights of having a witness endorsed on the indictment at this time with his address * * * [and] said witness after [on?] his deposition testified under oath that his name was Robert White, which is false, * * * [and] this defendant is now going to trial or continuing at this time with the trial without the benefit of his statutory rights for the reason that all said testimony given by this so-called witness Robert White, whose name was endorsed on the informa-tion [was false?], and that the witness does not live at the Metropolitan Police Department as his address was given on the indictment.” During the discussion appellant’s attorney admitted that he had known for “about a month” that the correct name of the person who used the name Robert White was in fact Walter Strickland, and the assistant circuit attorney stated to the court that “as far as I know the man’s name was Robert White.” The trial court permitted the State to endorse on the indictment as a witness the name of Walter Strickland.

Supreme Court Rule 24.17, V.A.M.R., requires the endorsement on an indictment or information the names of all material witnesses for the prosecution, but “other witnesses may be added at any time upon order of court and after notice to the defendant or his attorney of record” when by doing so the accused is not prejudiced. State v. Parks, Mo., 331 S.W.2d 547; State v. Hands, Mo., 260 S.W.2d 14; State v. Carson, Mo., 286 S.W.2d 750; State v. Churchill, Mo., 299 S.W.2d 475. In this case the trial court permitted the endorsement on the indictment of the name of a witness known by appellant for over a month as the person whose alias name was already endorsed thereon. Appellant did not claim surprise, and of course could not have been surprised, and he did not seek a continuance. His request was that the person, whom he then knew and had known for over a month, to be Walter Strickland, be “disqualified” as a witness. He was not entitled to that relief and there is no merit to the assignment of error in the motion for new trial.

The indictment charged that appellant “did unlawfully and feloniously sell to one, Robert White,” marijuana. At the close of all the evidence but before the case was submitted to the jury, the trial court permitted the filing of an information to be substituted for the indictment. The only difference, other than formal matters, between the two was that the information charged that appellant “did unlawfully and feloniously sell to one Walter Strickland, also known as Robert White,” marijuana. Appellant contends in his motion for new [521]*521trial that the court erred in permitting the information to be substituted for the indictment “after the proceedings had begun in violation of statute in that facts alleged in such information were materially different than those alleged in the original indictment.”

Supreme Court Rule 24.11, V.A.M.R., provides that “No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: * * * for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits: * * Supreme Court Rule 26.04, V.A.M.R., provides that “Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof in the Christian name or surname or both Christian name and surname or other description whatsoever of any person whomsoever therein named or described, * * * such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.” The trial court had the authority to permit the information to be substituted for the indictment at the time it did if no additional or different offense was charged and if substantial rights of the appellant were not prejudiced. Supreme Court Rule 24.02, V.A.M.R. No additional or different offense was charged by the information; appellant does not set forth any manner in which he was prejudiced; and in view of the fact that for more than one month before trial he knew that Robert White and Walter Strickland were one and the same person he could not have been prejudiced. The assignment is without merit.

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Related

State v. Davis
556 S.W.2d 745 (Missouri Court of Appeals, 1977)

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Bluebook (online)
379 S.W.2d 518, 1964 Mo. LEXIS 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whittington-mo-1964.