author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Bertrand J. HOLBERT, Appellant.
    No. 52100.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Deann Duff, Asst. Atty. Gen., Jefferson City, for respondent.
    John D. Flynn, St. Louis, for appellant.
   DONNELLY, Judge.

Defendant, Bertrand J. Holbert, was convicted of attempting to bribe an officer under § 558.080, RSMo 1959, V.A.M.S., by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment was assessed at imprisonment for five years. Defendant was represented by an employed attorney.

The jury returned its verdict on February 3, 1966. On February 7, 1966, defendant was granted thirty additional days within which to file a motion for new trial. No motion for new trial was filed. On March 21, 1966, defendant appeared, in person and with his employed attorney, was granted allocution, and was sentenced. On said date he filed a notice of appeal and paid a $10 docket fee. On May 24, 1966, defendant filed an appeal bond. On October 26, 1966, he was placed in the custody of the sheriff and the surety was released from the bond.

On March 3, 1967, defendant advised the trial court by letter that his employed attorney had been disbarred, and he then, for the first time, claimed to be an indigent. His present attorney was then appointed by the trial court to represent defendant on appeal. On March 16, 1967, this Court extended the time for filing transcript to May 22, 1967. On April 3, 1967, defendant filed his forma pauperis affidavit in the trial court and requested a free copy of a complete transcript of the trial proceedings in order to prosecute his appeal to this Court. On May 12, 1967, this motion was “sustained only to extent that reporter will prepare a transcript of the record proper.”

Defendant properly concedes that because he filed no motion for new trial we are precluded from the consideration of any matters required to he preserved in a motion for new trial. Supreme Court Rule 27.20 (a), V.A.M.R.; State v. Cook, Mo.Sup., 327 S.W.2d 854. However, defendant contends that he is entitled to a full review by this Court of the entire record under S.Ct. Rule 27.20 (c), V.A.M.R. (see State v. Meiers, Mo.Sup., 412 S.W.2d 478, 480, and State v. Beasley, Mo.Sup., 404 S.W.2d 689, 690), and that such review is denied him unless he is furnished a free and complete transcript of the trial proceedings.

We recognize that once Missouri “ ‘chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.’ ” Entsminger v. State of Iowa, 386 U.S. 748, 751, 87 S.Ct. 1402, 1404, 18 L.Ed.2d 501. However, we do not believe the State is required to furnish defendant a free transcript on appeal in this case.

Defendant was represented by employed counsel during trial, at allocution and sentencing, and upon the filing of his notice of appeal on March 21,1966. He paid a $10 docket fee and did not then claim to be an indigent. Under our rules, he should have filed the transcript on appeal within 90 days from March 21, 1966. Supreme Court Rules 28.08 and 82.18, V.A.M.R. There is nothing in the record to indicate that he was an indigent during that period of time. On May 24, 1966, he filed an appeal bond, a further indication he was not then an indigent. On March 3, 1967, nearly one year after filing his notice of appeal, defendant first claimed to he an indigent. Defendant could, and should, have filed the transcript while financially able. Under these circumstances, he is not entitled to a free transcript of the trial proceedings in this case.

Defendant concedes the sufficiency of the indictment, verdict, judgment and sentence. Supreme Court Rule 28.02, V.A.M.R.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: FINCH, Judge. PER CURIAM

license: Public Domain

text:
    Helen Patricia HUNT, Appellant, v. Basil Dean HUNT, Respondent.
    No. 52846.
    Supreme Court of Missouri, En Banc.
    Jan. 8, 1968.
    Rehearing Denied Feb. 12, 1968.

      Jayne, Oswald & Cottey, Kirksville, for appellant.
    Hulen & Hulen, Moberly, Edwards, Hess & Collins, Macon, for respondent.
   FINCH, Judge.

This is an action by a wife against her husband to recover $10,000 for personal injuries sustained in a one-car accident on August 30, 1958. The trial resulted in a jury verdict for $1500 and plaintiff appealed from the action of the trial court in overruling her motion for a new trial. The appeal went to the Kansas City Court of Appeals, which reversed and remanded for new trial on the issue of damages only. On application, the case was ordered transferred to this court, and we now consider it as though the original appeal had come directly to this court. Supreme Court Rule 84.05(h), V.A.M.R.

At the time of the accident in question, plaintiff was a student at Kirksville State Teachers College and had a date with the defendant that evening. They were married on June 24, 1959.

This was the second trial of this suit. The first trial resulted in a $6,000 verdict but the trial court granted a new trial for errors in instructions, which action was affirmed on appeal. Hunt v. Hunt, Mo.App., 387 S.W.2d 234.

Plaintiff’s brief asserts three points as a basis for a new trial, as follows: First, that the court erred in its ruling on the voir dire with respect to the issue of insurance. Second, that the court erred with respect to admission in evidence of intramural volleyball games at the College in which plaintiff allegedly participated after the accident, and in permitting examination of plaintiff with reference thereto. Third, that the court erred in various rulings on objections with respect to argument of counsel for defendant. We do not find any prejudicial error in any of these instances, as we shall point out.

The first assignment of error relates to the action of Mr. Collins in stating on voir dire to the jury that he, Mr. Foley and Mr. Hulen represented the State Farm Mutual Automobile Insurance Company. Plaintiff’s counsel had sought unsuccessfully in a conference prior to voir dire examination to have the court instruct counsel that they should not mention that they represented the insurance company.

In Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383, Division One of this court held such a statement to be proper. We need not and do not review that question herein because the trial court promptly sustained plaintiff’s objection to the statement and instructed the jury to disregard the remark. A mistrial was not requested.

Plaintiff, on appeal, complains that the trial court did not admonish counsel, as requested. The matter of reprimanding counsel is discretionary with the trial court. Louis Steinbaum Real Estate Co., et al. v. Maltz, et al., Mo., 247 S.W.2d 652, 31 A.L.R.2d 1052. We hold that the trial court did not abuse its discretion.

Plaintiffs second complaint is with respect to admission of records of volleyball games. We note that plaintiff herself testified that she played volleyball during the period in question. In our judgment, the admission of the records provided only cumulative evidence and could not have been prejudicial error. Kelly v. Terminal Railroad Ass’n of St. Louis, Mo., 315 S.W.2d 699 [3]. Hence, a consideration of whether the records fall within the Business Records Act would serve no useful purpose and we do not discuss it further.

Finally, plaintiff complains of various arguments by counsel to the jury. A consideration of these complaints should take into consideration certain facts established by the evidence. Plaintiff and defendant were husband and wife and were happily married. They came together to the trial at Moberly, and plaintiff testified that if the case lasted more than one day, they expected to stay there together that night. Plaintiff testified that she and her husband had two bank accounts, both of which were joint accounts.

In the course of the opening argument to the jury on behalf of plaintiff, these statements were made:

“ * * * Now you will remember that the defendant neither sat at this table during the whole trial nor did he ever testify in his behalf. The lawyers didn’t call him. * * * Now the defendant didn’t testify to that because Mr. Collins didn’t call the defendant. He wasn’t here to testify he was driving the car. He could have told you what he did if Mr. Collins wanted you to have all the information available to you.
“I say to you that you have been deprived of all the information you could have about this accident.
⅜ ⅜ ifi ‡ ⅜ j}í
“It means, find for Pat Hunt if the defendant, who didn’t testify and who Mr. Collins wouldn’t call, * * *.
“ * * * this man whom these lawyers wouldn’t even call to the witness stand.”

In argument by defendant’s counsel which followed, there were four occasions on which objection was made on behalf of plaintiff. All are covered in plaintiff’s brief and we consider them herein.

The first argument of which plaintiff complains was as follows:

“MR. HULEN: * * * Now you want to know why the insured or the gentleman who was the defendant did not testify? I’ll tell you, and you don’t need to be told, you know it. You think that this defendant, husband of the plaintiff, would take the stand and tell anything different from what this girl said regardless of what the facts are?
“MR. JAYNE: If the Court please, we object to counsel impeaching such motive of his own client, impeaching the professional etiquette. No evidence of any such thing and Mr. Hulen well knows it.
“THE COURT: The objection will be sustained.”

It will be observed that the court sustained the objection made by the plaintiff. No other relief of any kind was requested. No error is shown.

The second objection to argument was as follows:

“MR. HULEN: * * * It is a funny thing to me that after these people were married then this idea of lawsuit was conceived. Why ?
“MR. JAYNE: Object to that as being outside and ask that counsel be admonished. There is no evidence that this lawsuit was conceived after that marriage, and as a matter of fact we were employed a long time prior to it.
“THE COURT: The jury will be guided by the evidence. Proceed.
“MR. HULEN: They were married on the 24th day of June, 1959, the accident happened on August 30, 1958, and the lawsuit was filed on August 8th, 1959. Have I misquoted one iota in that situation ? Why did it take place ? * * * ”

When counsel objected that this argument was outside the record, the court directed the jury to be guided by the evidence, and then Mr. Hulen proceeded to point out the date of the accident, the date of the marriage, and the date when the suit was filed. No other objection was made and no further contention made that the statements were not correct. This occurrence does not show any prejudicial error.

The third instance in which an objection was made to the argument occurred soon after Mr. Collins began his. argument and was as follows:

“ * * * Mr. Chamier dwelled at great length on the fact we didn’t put the man who would share the benefit of the money-on the stand.
“MR. JAYNE: Object to it, no evidence to support that. An attempt to prejudice the plaintiff by an improper statement of counsel.
“THE COURT: Counsel will limit his remarks to the evidence and reasonable inference therefrom.”

This is another instance in which counsel for plaintiff objected that there was no evidence to support the statement, and the court promptly stated that counsel would limit his remarks to the evidence and reasonable inference therefrom. Mr. Collins proceeded to point out that Mr. Chamier was making a great point of the fact that they did not put on the stand the man who had a joint account with the plaintiff. This, of course, was in accordance with the evidence in the case, and counsel for plaintiff made no further objection and requested no other relief. We find no prejudicial error in this occurrence.

The final argument objected to, and the court’s ruling, was as follows:

“MR. COLLINS: * * * I sa> to you that those facts are indicative that this lady, although she was injured, she is well, and has been well for a long time and she is simply trying, she and her husband are trying to cash in.
“MR. JAYNE: No evidence of that, object to the highly prejudicial statement of counsel and ask that he be admonished.
“THE COURT: Sustained as to the remark of counsel.
“MR. COLLINS: Well then she alone, I say, is trying to cash in on this incident.”

It will be observed that the court sustained the plaintiff’s objection but did not take any action on the request that counsel be admonished. We have pointed out previously that admonishing counsel is discretionary with the trial court, and we do not find that there was any abuse of his discretion in this instance.

Plaintiff’s brief contains a discussion of other portions of the argument, but the transcript shows that no objection whatsoever was made in those instances and nothing is preserved for review thereon.

The judgment is affirmed.

All concur.

On Rehearing

PER CURIAM

On motion for rehearing appellant asserts that our opinion conflicts with cases such as Hancock v. Crouch, Mo.App., 267 S.W.2d 36, which hold that when objection is made to argument and the trial court simply tells the jury to be guided by the evidence, the court has not sustained counsel’s objection but such statement amounts to tacit approval of the argument. Appellant says that our opinion treats the court’s statement as the equivalent of an order sustaining the objection. We do not consider that the opinion so states. We did not so intend, and the opinion should not be so construed. After setting out verbatim what happened, the opinion merely concludes that from an examination of the transcript no prejudicial error is shown. It is of interest to note that Judge Stone, in Hancock v. Crouch, reached such a conclusion under the facts in that case, even though he specifically stated that the court’s statement was not the equivalent of an order sustaining objection to the argument.

Appellant also complains that the court failed to consider her request that it invoke Supreme Court Rule 79.04, V.A. M.R., which relates to plain error. We have considered the argument to which objection was made, all of which is set out in our opinion, and also have examined the other argument to which counsel makes reference but to which objection was not made in the trial court. It is the conclusion and judgment of the court that the plain error rule should not be invoked.

Appellant’s motion for rehearing is overruled.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. John Joseph BECKEMEYER, Appellant.
    No. 53088.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Adam B. Fischer, Sp. Asst. Atty. Gen., Sedalia, for respondent.
    Michael D. O’Keefe, St. Louis, for appellant.
   STOCKARD, Commissioner.

Defendant, charged under the habitual criminal act, was found guilty by a jury of burglary, second degree. The trial court assessed his punishment at seven years imprisonment.

Defendant contends that the trial court erred in failing to sustain his motion for a directed verdict at the close of the evidence “because the state failed to prove the defendant broke and entered the premises with the intent to commit a felony or to steal.”

On the evening of December 25, 1966, Robert Burton closed his confectionery store at 1051 Allen Avenue in St. Louis and locked both the front and back doors. Mr. Burton and his family resided above the confectionery store, and about 11:45 o’clock that evening Mr. Burton’s son, Gary, heard what he described as a “crash.” Gary awakened his father, who armed himself, and the two of them went downstairs. They found the defendant inside the confectionery store. A panel to the back door had been broken out and the door was open. The police were called, defendant was arrested and taken to the police station.

Mr. Burton testified that when he entered the confectionery store the defendant had “just reached down to pick up his bags” (subsequently identified by a police officer as brown paper bags), and that he (Mr. Burton) had not left the bags there. When asked if he examined the store after he found defendant there, Mr. Burton stated “there wasn’t a whole lot missing,” and “there were several things out of place, * * * costume jewelry, and some cigarettes dropped on the ice cream box also.” He identified a photograph as showing “the cigarette rack,” and “that area of the store” as it appeared on the night of December 25, 1966, but he said that it did not represent “the way the store looked” when he had left it earlier that evening to go upstairs because “the cigarette rack is empty and a few of the jewelry is missing here that I can’t see.” The paper bags contained “loose packs of cigarettes, scatter brooches, and tie clasps.”

Defendant does not challenge the sufficiency of the evidence to show a breaking and entering of the confectionery store by him. His challenge is limited to the contention that there was insufficient evidence to support a finding that the breaking and entering was done with the intent to steal therein. Intent is seldom subject to proof by use of direct evidence, and it usually must be inferred from the circumstances. State v. Chevlin, Mo., 284 S.W.2d 563. In State v. Cuffie, Mo., 403 S.W.2d 633, this court stated, concerning the proof of intent in burglary, that “ ‘Oftentimes the circumstances under which the breaking and entry are shown to have been made, in and of themselves, warrant a finding of an intent to steal.’ ” In this case the evidence shows that a short time before midnight defendant broke open a panel in the rear door of the confectionery store and entered it. He had with him at least two paper bags, and when he was discovered cigarette packages and items of costume jewelry had been removed from where the owner had left them, and cigarette packages and items of costume jewelry were in defendant’s paper bags. The fact that defendant was not successful in his purpose does not prevent a finding that the breaking and entering was with the intent to steal. State v. Whitaker, Mo., 275 S.W.2d 316. The evidence in this case not only authorizes, but practically compels, the finding that the breaking and entering was done with the intent to steal therein. There is no merit to defendant’s first point.

Defendant next asserts that the trial court erred in imposing the sentence instead of submitting the issue of punishment to the jury because, although defendant admittedly had been previously convicted of three felonies, “no evidence was adduced to show whether the defendant had ever been sentenced and subsequently-placed on probation, paroled, fined or imprisoned.”

Section 556.280, RSMo 1959, V.A.M.S., provides that if a person convicted of an offense punishable by imprisonment in the penitentiary “shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor,” shall thereafter be convicted of a felony, he “shall receive such punishment provided by law for the subsequent offense as the trial judge determines.” Evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, “and the court shall enter its findings thereon.” See State v. Garrett, Mo., 416 S.W.2d 116; State v. Hill, Mo., 371 S.W.2d 278; State v. Crow, Mo., 388 S.W.2d 817.

In the information it was alleged that defendant had on three occasions been convicted of felonies, that in each case he had been sentenced to imprisonment, and that subsequently he had been duly discharged from the imprisonment. When the assistant circuit attorney started to recite to the court what the evidence would be concerning the proof to invoke the provisions of the habitual criminal act, the court asked if the records were to be introduced or whether there was to be a stipulation. Counsel for defendant then stated, “There will be a stipulation,” and he then stated that it was “stipulated that defendant had been convicted of three prior felonies.” The court then directed remarks to the defendant as follows: “John Joseph Becke-meyer, the State of Missouri has charged in this amended information that you have been convicted of three prior felonies, and that you were convicted on June 15, 1964, in the Circuit Court of the City of St. Louis, of burglary second degree and stealing; and that you were also convicted on the same date in the Circuit Court of the City of St. Louis, of the offense of burglary second degree and stealing, and that on September 16, 1965, you were convicted in the Circuit Court of the City of St. Louis of burglary second degree. Your attorney has indicated that he has discussed this with you, and that the record may show by stipulation that you were, in fact, convicted of these three offenses. Is that correct, sir?” The defendant replied, “Yes, sir.” The trial court then expressly found, “based upon the stipulation of the defendant and the answers to the questions posed to the defendant by the court,” that the defendant had on June 15, 1964 twice been convicted in the Circuit Court of the City of St. Louis for burglary, second degree, and stealing, and that on September 16, 1965, he had once been convicted in the Circuit Court of the City of St. Louis for burglary, second degree; that he was sentenced to imprisonment in connection with each conviction; and that he was imprisoned on June 30, 1964 for the first two convictions and discharged on May 4, 1965, and imprisoned on October 1, 1965 for the third conviction and discharged on October 25, 1965.

The necessary documentary evidence to invoke the provisions of the habitual criminal act apparently were in the courtroom in the possession of the assistant circuit attorney, and the state was prepared to present that evidence. However, in lieu of the introduction of that evidence the stipulation as above set out was entered into. The stipulation, as shown of record, was not as inclusive as it should have been. It did not contain the specific provision that defendant had been sentenced and subsequently imprisoned. However, it obviously was the intent of the parties to eliminate the necessity of formal proof of the facts required to invoke the application of the habitual criminal act. Defendant and his counsel stood before the trial judge and heard him recite his findings of fact which he stated were “based upon the stipulation of the defendant and the answers to the questions posed to the defendant by the court.” Yet, neither the defendant nor his counsel protested that the stipulation of facts was not intended to and did not include the fact that defendant was sentenced to imprisonment as to each conviction or the fact that he had been imprisoned in each case.

We are not impressed with defendant’s contention now made on appeal for the first time that there was no evidence to support the findings of the trial court that defendant had been sentenced and imprisoned for one or more of the previous convictions. Under the factual circumstances we have related, we think it is reasonable to conclude that defendant and his counsel agreed that the findings of fact made by the trial court were correct. We note that on this appeal defendant makes no contention whatever that the findings of the trial court were not in fact correct.

This is not to be construed as implying that by remaining silent a defendant can in the ordinary course of a trial supply evidence which the state must present to sustain its burden of proof on an issue. We limit our ruling to the factual situation we have here where the parties obviously intended the stipulation to extend to such facts as were necessary for the application of the habitual criminal act, but failed to specifically state all of such facts into the record, and then when the court made its findings based on that stipulation, defendant did not object that the facts found by the court went beyond those contained in the stipulation. We consider this to have been an expression by defendant that the facts found by the trial court were correct, and that we may treat this expression the same as though, after reciting the findings of fact, the trial court had asked the defendant if he agreed that those facts were correct, and he had replied in the affirmative.

An examination of the record as required by Criminal Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: BARRETT, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Lonnie LEIGH, Appellant.
    No. 52423.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, C. H. Parsons, Jr., Sp. Asst. Atty. Gen., Dexter, for respondent.
    Samuel B. Murphy, St. Louis, for appellant, Emanuel Williams, St. Louis, Assoc. Counsel, Cook, Murphy, Lance & Mayer, St. Louis, of counsel.
   BARRETT, Commissioner.

In the language of the statute, RSMo 1959, Sec. 559.260, V.A.M.S., an indictment charged that on December 24, 1965, the appellant, Lonnie Leigh, committed an assault upon Carolyn, eleven years old, and “did then and there unlawfully and feloniously rape, ravish and carnally know.”

In brief, as the jury could reasonably find, these were the circumstances in which the jury found the appellant guilty and fixed his punishment at eight years’ imprisonment. Carolyn lived at 2629 Clara Avenue, in an apartment on the corner of Clara and Kennerly. On December 24, 1965, after dark, Carolyn’s mother sent her to the neighborhood grocery, “two corners” from home, to exchange Irish potatoes for sweet potatoes. Carolyn made the exchange and after she came out of the store the appellant Leigh grabbed her, placed a sack over her head and, with a knife “against my ear,” started “running me down this alley,” Carolyn screaming “Help me, somebody.” He took her into “this house,” forced her to remove her clothes and despite her screams ravished her. She dressed in the bathroom, ran home, and told her mother what “that man” had done. During her ravishment Carolyn saw the defendant and recognized him as one known to her and to her mother as “that man” because they had seen him frequently at 2630 Clara (across the street from 2629 Clara), the home of Edward Harold. The defendant, incidentally, was Harold’s “sister’s boy.” As to the fact of her ravishment Carolyn was corroborated by the testimony of a doctor who examined her shortly after 9 o’clock.

One of the assignments of error briefed and argued here is that the court erred in permitting Carolyn “to testify repeatedly to a conclusion which was the ultimate issue that the jury was to determine.” This objection refers to these questions and answers as to her identity of appellant: “Q. Now, Carolyn, are you absolutely positive? A. Yes, sir. Q. No doubt in your mind whatsoever? A. No, sir.” There were no objections to these questions and it is urged that the assignment should be considered as plain error under Rule 27.-20(c), V.A.M.R. Aside from the fact that this line of examination does not fall in the category of manifestly inflammatory and improperly prejudicial material within the meaning of the plain error rule (the questions were not comparable to “Are you sure today beyond any reasonable doubt that this is the man who struck you? ”), her identification was based on personal knowledge and observation and she “responded with an ordinary opinion not in any way invading the province of the jury.” State v. Linzia, Mo., 412 S.W.2d 116, 120. Furthermore, in even these briefly narrated circumstances, the evidence supports the charge and the jury’s verdict. State v. Ybarra, Mo., 386 S.W.2d 384; State v. Durham, Mo., 418 S.W.2d 23.

The other briefed and argued assignments of error relate to venue. It is urged that the state “failed to prove venue as to- the alleged offense, thereby depriving appellant of a right guaranteed under Article I, Section 18(a) of the Missouri Constitution and the Sixth Amendment to the United States Constitution.” In this connection it is said that the trial court “compounded” the error by its failure to instruct the jury that they “must find that the alleged offense was committed within the City of St. Louis.” There were no objections whatever directed to these points in the trial of the cause and again it is urged that these assignments should be considered and held to entitle appellant to a new trial under the plain error rule. But, as indicated, these matters were not set forth in the appellant’s motion for a new trial as they were in State v. Hartwell, Mo., 293 S.W.2d 313, 317-318. There were no motions directed to the indictment, there were no challenges to the court’s jurisdiction, there were no objections to the instructions or to the proof on the score of venue and, of course, the precise place of the crime of rape, as with sodomy (State v. Heissler, Mo., 324 S.W.2d 714), particularly “carnal knowledge” of a child, is not in any sense an integral part of the offense as it may well be in some crimes, as filing a false income tax return with intent to evade the tax (State v. Poelker, Mo., 378 S.W.2d 491) or in uttering a forged instrument. State v. Hawkins, Mo., 361 S.W.2d 775, 778. While certain of the safeguards in the Sixth Amendment to the Constitution of the United States, for example, the right to a speedy trial, “apply to the States through the Fourteenth Amendment” (Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923), it has not been held or suggested by any court that the provision as to a trial by “a jury of the State and district wherein the crime shall have been committed” applies to or necessarily governs the venue of crimes in -the several states. The provision in the Missouri constitution requiring a speedy trial by an impartial “jury of the county” is a personal privilege and may be waived. State v. Page, Mo.App., 186 S.W.2d 503, 507; 21 Am.Jur.2d Criminal Law, Sec. 401, p. 418; 22 C.J.S. Criminal Law § 176, p. 432. Venue in Missouri, and, incidentally in many federal offenses, has been governed by statute, at least since 1879. “Offenses committed against the laws of this state shall be punished in the county in which the offense is committed, except as may be otherwise provided by law.” RSMo 1959, Sec. 541.030, V.A.M.S. And certainly as to crimes in which the precise place is not a significant factor in the offense “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 * * * (8) For want of a proper or perfect venue; nor (9) For want of any venue at all.” RSMo 1959, Sec. 545.030, V.A.M.S. Venue may be established by circumstantial evidence or inferred from the circumstances (State v. Garrett, Mo., 416 S.W.2d 116; State v. Heissler, Mo., 324 S.W.2d 714) but it is not necessary to go through that process here. In the particular circumstances of this case, any matter relating to venue not having been set forth and assigned as error in the motion for a new trial and not having been called to the trial court’s attention in any manner the assignments are not reviewable as plain error upon this record. State v. Meiers, Mo., 412 S.W.2d 478, 481; State v. Kenyon, 343 Mo. 1168, 1180, 126 S.W.2d 245, 252; 92 C.J.S. Venue § 73, p. 772.

Accordingly, the judgment is affirmed.

STOCKARD and PRITCHARD, CQ, concur.

PER CURIAM:

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: STORCKMAN, Judge. SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Robert Lee WILKINSON, Appellant.
    No. 52611.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Roscoe E. Moulthrop, Bethany, for appellant.
   STORCKMAN, Judge.

Defendant was convicted of burglary-in the second degree and under the provisions of the Habitual Criminal Act was sentenced to nine years in the custody of the Department of Corrections. Sections 560.070, 560.095, and 556.280, RSMo 1959, V.A.M.S. Three points are- raised by the defendant on appeal: that he was not accorded a constitutionally fair trial because of the misconduct of his trial counsel; that the circuit court erred in refusing to remand the case to the magistrate court for a preliminary .hearing; and that the court erred in overruling an application of the defendant for a change of judge. While the sufficiency of the evidence to support the conviction is not questioned, a brief review of the facts constituting the offense will be helpful in understanding the import of the defendant’s complaints.

During the night of April 8, 1965, a jewelry store owned and operated by Russell Whisler in the City of Trenton was broken into. A padlock was pried off a rear basement door, a bar was knocked off an interior door, and a hole was broken through a plasterboard wall near the top of a basement stairway leading into the store proper. A bag and tools were found in the room in which were located two safes, the combinations of which had been broken off. The outer portion of one safe had been pried away and the insulation was exposed and scattered about the room. Some merchandise was found stacked near the rear exit.

About 1:00 a.m. on the night in question, Olan Moore saw two men park a white two-door Pontiac automobile near his home which was about four or five blocks from the Whisler Jewelry Store. The two men, one of whom Mr. Moore identified as the defendant, left the car and walked toward the business district. One of the men was carrying a bag similar to the one found in the jewelry store. Since it was “a strange car”, Mr. Moore notified the police by telephone and waited to see what would happen. About 5:30 a.m. he saw the two men return to the car without the bag. As they drove away a highway patrol car followed and when they were out of sight Mr. Moore heard the cars speed up and then the firing cf shots.

In the meantime the Trenton police had notified the Highway Patrol and two patrolmen took up separate stations near the parked Pontiac. Later other officers started to “shake doors” in the business district and about 5:30 a.m. the back door of the jewelry store was found to be open. Patrolman C. J. Baker in a patrol car pursued the departing Pontiac; the driver lost control of the Pontiac and it ran off the pavement into a yard and the patrolman shot out its right rear tire. The Pontiac was then backed at high speed toward Patrolman Baker who fired four more shots from a riot gun through the rear window of the car. When the Pontiac came to a stop the defendant was slumped under the steering wheel in a wounded condition. He and his companion were arrested. The defendant was first taken to a Trenton hospital and then to Columbia where he was treated. Debris taken from the clothes worn by the defendant was examined by a chemist in the Highway Patrol Laboratory. This expert witness testified that particles of plaster and insulation material taken from the cuffs of defendant’s trousers were similar to samples of material found in the jewelry store and that clothing fibers found hanging on the edges of the hole in the plasterboard wall of the jewelry store matched the fibers of the defendant’s jacket. The defendant did not testify or offer any other evidence in his behalf.

The matters of which the defendant complains on appeal occurred for the most part prior to the actual trial in the circuit court. The transcript and other records filed by stipulation of the parties disclose that on April 23, 1965, the defendant appeared with a Trenton attorney in the Magistrate Court of Grundy County, furnished bond in the sum of $4000 for his appearance at a preliminary hearing in magistrate court on May 7, 1965, and was released from custody. The defendant failed to appear on May 7 and his bond was forfeited. The magistrate further entered an order which recited that a letter received that morning from a Kansas City attorney purported to transmit an application and affidavit for continuance. The order further recited that the presence of counsel in person was required when any motion is taken up and considered and the hearing was continued to May 15, 1965. The hearing was further continued to May 21 and then to May 28, at which time the defendant appeared with a Kansas City attorney who presented the application for a continuance on the ground that he, the defendant’s attorney, was a member of the general assembly then in session. By leave defendant amended the application to state that his counsel was the only attorney representing the defendant and that such attorney would be present and actively represent the defendant at any trial of the case. The application was then sustained and the hearing was continued to July 30, 1965; the forfeiture of defendant’s bond was set aside.

On July 30, Louis Wagner, another attorney from Kansas City, entered his appearance as counsel for the defendant. The Kansas City attorney who had previously represented the defendant did not appear. Mr. Wagner filed an application for a “change of venue” which asserted that the defendant could not have a fair and impartial trial before the magistrate of Grundy County “by reason of the prejudice of the inhabitants of said county.” The order overruling the application cited §§ 544.290 and 544.300 and concluded with this statement : “Whereupon, Louis Wagner, Attorney for Defendant, states to the Court that he will not participate in this preliminary examination as an Attorney for the Defendant; Defendant ordered by the Court to be present throughout this preliminary examination. Offer made by the Court to Louis Wagner, Attorney for Defendant, to allow him time to prepare Application for Disqualification of the Judge of this Court; offer refused by said Wagner.”

On August 2, 1965, an information was filed in the Circuit Court of Grundy County charging the defendant with burglary in the second degree and Louis Wagner entered his appearance as attorney of record on September 14, 1965, and the first Kansas City attorney withdrew. On November 22, 1965, the defendant was arraigned. Appearing in person and by attorney Wagner, he waived reading of the information and entered a plea of not guilty. Thereafter, the case was set for trial in April 1966 but was continued on defendant’s application because his counsel was a member of the general assembly then in session. Four days before the case was set on June 30, 1966, an attorney from Trenton who was contacted by Mr. Wagner filed on behalf of the defendant an application for change of judge. The court indicated its intention to overrule the application but withheld the ruling to give the defendant an opportunity to apply for a writ of prohibition. The writ was not sought and the application was overruled.

At the setting on June 30, 1966, an attorney from St. Joseph appeared with the defendant and advised the court that the defendant had discharged Mr. Wagner and requested a continuance to enable new counsel to prepare a defense. The court permitted the additional counsel to enter their appearances, but stated that Mr. Wagner had talked to the court the previous week at which time Mr. Wagner gave no indication that he would not be present and ready for trial. The court ordered Mr. Wagner to appear later in the day, and when he did not do so he was found to be in contempt of court. The cause was continued at defendant’s request to July 18, 1966. The next day, on July 1, Mr. Wagner appeared before the court with the defendant and other counsel. He advised the court he had been discharged by the defendant the day before the trial setting but that he would continue in the case with the consent of the defendant. The court accepted Mr. Wagner’s apology and found he had purged himself of contempt.

At the hearing on July 1, the court noted that a question had been raised by counsel whether the defendant had a mental disease or defect rendering him unfit to proceed. On its own motion the court ordered that a mental examination be made at the State Hospital in Fulton. On August 23, 1966, on the basis of the examination, the court found the defendant capable of proceeding to trial. The case was set for trial on September 29, 1966. On September 23, 1966, Mr. Wagner and the defendant appeared before the court. Mr. Wagner advised the court that he had received a letter from his client stating that he no longer desired Mr. Wagner’s services and Mr. Wagner applied for leave to withdraw. The state objected if the withdrawal would result in another continuance. The defendant was sworn and examined relative to his reasons for seeking to discharge Mr. Wagner. The court concluded that there was no assurance that any other attorney could represent the defendant in a more capable manner than Mr. Wagner or that the defendant would be any more cooperative with another attorney and denied the request because it was not for a proper purpose. The court advised the defendant, however, that he could employ additional counsel to represent him and to assist Mr. Wagner if he so desired. At the beginning of the trial Mr. Wagner renewed his request to withdraw. After ascertaining that there had been no change in circumstances since its previous ruling, the court again denied the request.

The trial began on September 29, 1966. Out of the hearing of the jury, the state proved prior convictions for burglary. The jury found the defendant guilty and the court assessed his punishment. Mr. Wagner represented the defendant throughout and thereafter prepared and filed a motion for a new trial. On October 7 present counsel entered his appearance. Mr. Wagner was permitted tj withdraw on October 24, 1966. Thereafter, the motion for new trial was taken up, evidence was heard, and the motion was overruled.

The defendant’s first contention is that the trial court erred in overruling the application made by his counsel on September 23, 1966, for leave to withdraw from the case. In this connection the defendant asserts that he was not accorded a constitutionally fair trial “in view of a long series of occurrences extending over a period of approximately one year during which the counsel for the defendant seeking permission to withdraw from the case * * willfully, negligently, improperly and unethically conducted himself and in utter contempt for the trial court”. Willis v. Hunter, 10 Cir., 166 F.2d 721, cited by defendant, states the nature of effective assistance of counsel according to the constitutional mandate and the standards by which it is determined. The case holds that the accused was not deprived of the effective assistance of counsel. In Lunce v. Overlade, 7 Cir., 244 F.2d 108, 74 A.L.R.2d 1384, the court held the evidence established the invalidity of an Indiana conviction where the accused was represented by an Ohio attorney who came into the case belatedly and was unfamiliar with the Indiana practice. The defendant also cites Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, but does not indicate its pertinency and we find none since statements of the defendant in custody or otherwise are not involved.

The defendant also refers us to 23 C.J.S. Criminal Law § 982(8), which is a comprehensive treatment on the subject of effective assistance of counsel for the accused. This section at pages 975-976 states: “Counsel for Accused is vested with broad latitude in the conduct of the defense and he is not to be adjudged incompetent and his client deemed denied effective assistance of counsel by reason of the commission of what, in retrospect, appear to be errors of judgment. Mere errors, omissions, or mistakes by counsel do not establish a lack of effective representation by counsel. Trial strategy, even though unsuccessful, is an inadequate basis for an attack on the competency of counsel, and this rule has been applied where counsel refrained from cross-examination or from calling certain witnesses, or where counsel decided that accused should not take the stand.” This statement is quoted with approval by the court en banc in In re Goodwin, Mo., 359 S.W.2d 601, certiorari denied 371 U.S. 915, 83 S.Ct. 262, 9 L.Ed.2d 174.

Whether the accused has been afforded adequate and effective assistance of counsel must be determined from all the facts in the case considered in the light of the situation existing at the time the attorney was required to act and not as it appears to a critical reviewer in retrospect. In re Goodwin, Mo., 359 S.W.2d 601, 602 [2], certiorari denied 371 U.S. 915, 83 S.Ct. 262, 9 L.Ed.2d 174; State v. Turner, Mo., 353 S.W.2d 602, 605 [9,10]; State v. Johnstone, Mo., 335 S.W.2d 199, 206 [14-17], certiorari denied 364 U.S. 842, 81 S.Ct. 81, 5 L.Ed.2d 66, rehearing denied 364 U.S. 906, 81 S.Ct. 237, 5 L.Ed.2d 199; State v. Eckenfels, Mo., 316 S.W.2d 532, 536 [10].

The defendant recognizes that the determination of whether counsel should be permitted to withdraw from a case is generally within the sound discretion of the trial court. State v. Mimms, Mo., 349 S.W.2d 925, 927 [3]. Furthermore, a convicted defendant who asserts that his attorney did not render adequate and effective legal assistance commensurate with constitutional standards has a heavy burden to sustain. Reid v. United States, 9 Cir., 334 F.2d 915, 919 [9].

It is quite apparent from the record that the acts and conduct of attorney Wagner which present counsel characterizes as negligent, improper, unethical and contemptuous were designed to delay the disposition of the criminal proceedings in the hope of obtaining an advantage for the defendant. It appears that Mr. Wagner was the only attorney retained by the defendant and that he brought the other attorneys into the case as they suited his purposes. By this means two “legislative continuances” were obtained. The burglary was committed and the defendant was apprehended on April 8, 1965, and the trial and conviction was on September 29, 1966, almost a year and a half later. The delay both in magistrate and circuit court was brought about by the defendant and his attorneys. The defendant, 33 years of age at the time of trial, had five previous burglary convictions, all entered on pleas of guilty. The report of the psychiatric examination filed in circuit court stated that the defendant “has made his livelihood when not in institutions by being, in his terms, a professional burglar.” Hearings before the circuit judge disclosed that attorney Wagner had advised the defendant to plead guilty to the pending charge, but the defendant was unwilling to do so without knowing what term of imprisonment would be imposed. If any real friction existed, it stemmed largely from this circumstance. When he was unable to get assurance in this respect and was unable to get further continuances, he went to trial.

It is noteworthy that none of the issues presented on this appeal relate to the manner in which attorney Wagner handled the trial on the merits. The obvious reason is that the case was defended in an experienced and capable manner. Objections made by defendant’s counsel were sustained in numerous instances. His cross-examination of witnesses and argument to the jury were suitable to the circumstances. If the state’s case had been less well prepared and presented, the result might have been different. The trial judge was meticulous in protecting the rights of the defendant and there was not the slightest indication of any bias or hostility growing out of the defendant’s dilatory tactics. A review of the entire record discloses that the conviction was due to the overwhelming evidence against the defendant and not to a lack of adequate and effective legal representation. The court did not err in overruling the application of defendant’s counsel for leave to withdraw. State v. Riley, Mo., 394 S.W.2d 360, 363 [3]; State v. Ybarra, Mo., 386 S.W.2d 384, 386 [3]; State v. Ross, Mo., 375 S.W.2d 182, 185 [6]; State v. Worley, Mo., 371 S.W.2d 221, 224 [8]; State v. Mimms, Mo., 349 S.W.2d 925, 927 [3]; Reid v. United States, 9 Cir., 334 F.2d 915, 919 [10].

After the trial was commenced and three witnesses had been examined, attorney Wagner made an oral attack upon the jurisdiction of the circuit court on the ground that the defendant was not represented by counsel at the preliminary hearing before the magistrate. In support of his oral motion, defendant’s counsel relied on exhibit 2 which was the magistrate’s order of July 30, 1965, previously referred to, wherein an application by the defendant for a change of venue on the ground of prejudice of the inhabitants of the county was overruled. The order further recites that attorney Wagner then stated that he would not participate in the preliminary examination as an attorney for the defendant. The magistrate offered to allow counsel time to prepare an application for disqualification of the judge but the offer was refused and the defendant was ordered to be present throughout the preliminary examination. This exhibit was all that was offered in support of defendant’s motion attacking the jurisdiction. The circuit judge found from the records that attorney Wagner had entered his appearance in magistrate court prior to the preliminary hearing, that he did not withdraw as counsel or apply for leave to withdraw and that the reasons why Mr. Wagner stated that he would not participate in the hearing were not disclosed to the court. The circuit judge concluded from the record that “the Defendant was, in fact, represented by an attorney at the time of the preliminary hearing” and overruled the motion attacking the jurisdiction.

The defendant now contends that the trial court erred in overruling “the application of the defendant to remand the cause of action to the magistrate court for a preliminary hearing at which the defendant could be properly represented by counsel”. He asserts that the preliminary hearing was a critical stage of the proceeding during which the constitutional rights of the defendant to a fair and impartial trial were permanently prejudiced and impaired. The defendant does not undertake to demonstrate in what respect his rights have been prejudiced. He cites Harris v. Wilson, D.C., 239 F.Supp. 204, and Bird v. Sigler, D.C., 241 F.Supp. 1007, which involved preliminary examinations in California and Nebraska where the nature of the hearing is very much different than in Missouri. He also cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, which are not controlling or persuasive on the facts of this case. The nature and functions of the preliminary hearing in Missouri are considered in numerous decisions among which are the recent cases of State v. Turley, Mo., 416 S.W.2d 75, State v. Durham, Mo., 416 S.W.2d 79, and State v. Turner, Mo., 353 S.W.2d 602. The ruling of the question need not rest on this ground, however, because we find from the records before us, as the trial court did, that the defendant was in fact represented by counsel at the time of the preliminary hearing. Nor was the legal representation a farce or a mockery. In addition to what has been previously stated, the record shows that Mr. Wagner has been an active trial lawyer for over forty years ; most of his practice has been the defense of criminal cases; he had handled “hundreds” of such cases. He was selected and retained by the defendant. The reason of his refusal to “participate” in this hearing is not apparent from the record; we do know that the strategy of defense counsel generally is to observe and not actively contest the preliminary hearing since its purpose is merely to develop probable cause to justify holding the defendant and filing an information. Sometimes the preliminary hearing; is waived entirely without any suggestion of impropriety. Ineffective representation in this respect has not been demonstrated and it does not appear from the record. The contention is denied.

The final contention is that the trial judge erred in overruling the application for a change of judge. It is conceded that the application was not timely filed, but the defendant urges that the trial judge in the exercise of a sound discretion should have entered an order disqualifying himself as permitted by S.Ct. Rule 30.12, V.A.M.R. No case is made for such action and none appears from the record. In spite of being faced with a series of delaying tactics the trial judge acted with patience and restraint that bespeaks a determination to accord the defendant a fair trial which was accomplished. The court did not err in overruling the application for a change of judge. State v. Crow, Mo., 388 S.W.2d 817, 822 [13]; State v. Shaw, Mo., 357 S.W.2d 894, 896 [2],

We have examined those parts of the record subject to review under S.Ct. Rule 28.02, V.A.M.R., and find them legally sufficient and devoid of error. Accordingly the judgment is affirmed.

HENLEY, P. J., concurs.

SEILER, J., concurs in separate concurring opinion filed.

Concurring Opinion

SEILER, Judge.

I concur, with the reservation that I do not believe the burden is any greater on the defendant in a claim of violation of constitutional rights pertaining to effective assistance of counsel than it is in any other claim of violation of constitutional rights of a defendant in a criminal conviction. The question is whether the demands of due process were met — whether there was a denial of that fundamental fairness without which no conviction can stand. I agree that such did not occur in the present case. But if the statement in the opinion, “Furthermore, a convicted defendant who asserts that his attorney did not render adequate and effective legal assistance commensurate with constitutional standards has a heavy burden to sustain”, means there i to be some added burden placed on the defendant who asserts this particular constitutionally protected right, I respectfully state I do not believe this can constitutionally be done.

      . As the principal opinion shows, the quoted statement is based on Reid v. United States (C.A. 9th) 334 F.2d 915, 919. As I read the Reid opinion, it seems to me that the statement was not at all necessary to the decision. Under the facts there stated, the question whether defendant Reid was denied the right of competent counsel was not a close one.


author: STORCKMAN, Judge.

text:
    Lester KING, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.
    No. 52828.
    Supreme Court of Missouri, En Banc.
    Jan. 8, 1968.
    Rehearing Denied Feb. 12, 1968.

      T. E. Lauer, Columbia, for petitioner.
    Norman Anderson, Atty. Gen., for respondent.
   STORCKMAN, Judge.

This is an original proceedings for a writ of habeas corpus filed in this court by Lester King, an inmate of the Missouri State Penitentiary, against Warden Harold R. Swenson to test the legality of the prisoner’s incarceration. The validity and application of §§ 222.020 and 546.480, RSMo 1959, V.A.M.S., are the principal issues involved. Insofar as material to this case, § 222.020 provides that if a convict commits a crime in an institution of the department of corrections and is convicted, his sentence for such crime shall not commence to run until the expiration of the sentence under which he is held. Section 546.480 provides that when “any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior conviction.” The facts upon which a determination of the questions presented depends are not in dispute.

On November 17, 1955, Lester King was convicted of robbery in the first degree and was sentenced to fifteen years in the Missouri State Penitentiary where he has since remained. On October 15, 1965, this sentence was commuted by the governor of Missouri to a term ending October 28, 1965. However, on December 24, 1961, while confined in the penitentiary, King committed acts which resulted in his being charged with the criminal offenses of attempting to escape in violation of § 557.351 and of offering violence to a prison guard in violation of § 216.460.

Thereafter, on October 9, 1962, the petitioner King was convicted in the Circuit Court of Montgomery County, Missouri, of the felony of attempting to escape from the penitentiary. Upon the return of the jury’s verdict of guilty, the Circuit Court of Montgomery County, acting pursuant to § 556.280, determined “that the Defendant’s punishment for the offense of Attempted Escape from the Missouri State Penitentiary for which he has now been convicted in this trial by the verdict of the jury shall be assessed at imprisonment in the penitentiary for a term of four years.” On February 20, 1963, the petitioner was formally sentenced by the Circuit Court of Montgomery County to a term of four years in the custody of the department of corrections. This conviction was affirmed by the Missouri Supreme Court on November 11, 1963. State v. King, Mo., 372 S.W.2d 857.

On January 16, 1963, the petitioner was convicted in the Circuit Court of Saline County, Missouri, of the felony of offering violence to a guard of the department of corrections, and on February 7, 1963, he was sentenced by the court pursuant to § 556.280 to a term of five years in the custody of the department of corrections. This conviction was affirmed by the Missouri Supreme Court on January 13, 1964. State v. King, Mo., 375 S.W.2d 34. Since the dates on which he was sentenced on each of the convictions for attempted escape and offering violence to a guard, the petitioner has been confined in the Missouri State Penitentiary, and has served in an orderly and peaceable manner, without having any infraction of the rules or laws of the institution recorded against him within the purview of § 216.355, which permits the discharge of a prisoner who has served in such a manner three-fourths of the time for which he was sentenced.

It will be helpful to determine first the petitioner’s contention that § 546.480 does not apply in this situation “because he was not convicted of two offenses before being sentenced on either of them, but was sentenced on the first offense prior to the second conviction.” In other words, King contends that in legal effect he was sentenced to four years in the penitentiary on October 9, 1962, the date of his conviction, in that after the verdict of guilty was returned and the jury discharged the court determined that the defendant’s punishment “shall be assessed at imprisonment in the penitentiary for a term of four years.” It should be noted that the entry immediately following is that on the defendant’s motion thirty days additional time was allowed for filing his motion for new trial. The respondent contends that sentence was not lawfully imposed until February 20, 1963, which was after his conviction on January 16, 1963, of offering violence to a guard and after his sentencing on that conviction on February 7, 1963. The circuit court record of February 20, 1963, recites that the court “did assess his [the defendant’s] punishment at four years” on October 9, 1962, but then proceeds to grant allocution, formally pronounces sentence and directs the sheriff to deliver the defendant to the department of corrections.

The proceedings which the petitioner now attacks are entirely consistent with § 556.280, the Habitual Criminal Act, which provides that defendant “shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted” if the judge determines before the case is submitted to the jury that there is a prior conviction. The petitioner cites S.Ct. Rules 28.-08, 27.09, 27.10 and 29.04, V.A.M.R., which relates to the requirements at formal sentencing and contends all such elements were present and entered into the action taken immediately after the conviction on October 9, 1962, when the trial judge determined or assessed the punishment pursuant to § 556.280. The contention ignores the fact that an extension of time was granted defendant immediately thereafter to file his motion for a new trial, that such motion was filed and was overruled on February 20, 1963, at which time the defendant was formally sentenced in the manner provided by law and the rules of court, including allocution which was missing from the proceedings on October 9, 1962.

The determination of punishment made by the trial judge, after conviction and before the filing and ruling on a motion for new trial, is not a formal sentencing or a final judgment and does not preclude the trial judge from reaching a different conclusion and imposing a different sentence on final judgment. State v. Jaeger, Mo., 394 S.W.2d 347, 354[14]; State v. Grant, Mo., 380 S.W.2d 799, 802-803[3]. A preliminary indication of the punishment the court intends to impose is helpful in that it enables the defendant to incorporate his objections in his motion for new trial and to urge the results of a pre-sentence investigation prior to actual imposition of the sentence, but a failure to do so does not prevent appellate review of the judgment and sentence for lack of an allegation of error in the motion for new trial. S.Ct. Rule 28.02, V.A.M.R., State v. Watson, Mo., 400 S.W.2d 129, 132[3], We rule, therefore, that the four-year sentence for attempted escape was pronounced on February 20, 1963, not on October 9, 1962, as contended by the petitioner, and § 546.480 is not inapplicable for the reasons urged in item six of the petitioner’s brief.

The essential chronology of King’s criminal history then is that he was sentenced to a term of fifteen years imprisonment on November 17, 1955, and since then has been confined in the penitentiary. On October 9, 1962, he was found guilty by a jury’s verdict of attempted escape and on January 16, 1963, of offering violence to a guard. On February 7, 1963, he was sentenced to a term of five years for offering violence and on February 20, 1963, to a term of four years for attempted escape. His fifteen-year term for first degree robbery was terminated October 28, 1965, by the governor’s commutation. If, as the petitioner contends, the four and five year sentences ran concurrently with each other and concurrently with the fifteen-year term as commuted, he is entitled to be discharged; if the terms run consecutively as respondent contends, he cannot be released until a future date which will depend somewhat on his behavior in prison.

The attacks on the constitutionality of §§ 222.020 and 546.480 will be considered next. First the petitioner contends that § 222.020 is unconstitutional because it constitutes a bill of attainder in violation of Art. 1, § 10, of the Constitution of the United States, and Art. 1, § 30, of the 1945 Constitution of Missouri, V.A.M.S. The federal constitution provides that no state shall “pass any Bill of Attainder” and the state provision is “that no person can be attained of treason or felony by the general assembly”. Bills of attainder are defined in United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 1079 [2], 90 L.Ed. 1252, as “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them' without a judicial trial.” The noted Missouri loyalty oath case states that: “A bill of attainder is a legislative act which inflicts punishment without a judicial trial.” Cummings v. State of Missouri, 4 Wall. 277, 71 U.S. 277, 323, 18 L.Ed. 356. The petitioner relies chiefly upon United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 1710[2], 14 L.Ed.2d 484, holding that a federal statute, which makes it a crime for a member of the Communist Party to serve as an officer or, with certain exceptions, as an employee of a labor union, was invalid as a bill of attainder.

Only the clearest proof will suffice to establish the unconstitutionality of a statute on the ground that it constitutes a bill of attainder. Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 1403 [26], 6 L.Ed.2d 625; 16 Am.Jur.2d, Constitutional Law § 411, p. 752. Generally, legislation which is intended to prevent future dangerous acts, rather than to punish past action, by members of a group or class of persons, is not unconstitutional as a bill of attainder. American Communications Ass’n CIO v. Douds, 339 U.S. 382, 70 S.Ct. 674, 691 [25], 94 L.Ed. 925; 16 Am. Jur.2d, Constitutional Law § 412, p. 752.

A bill of attainder proscribed by the constitution is a legislative determination of the guilt of certain named persons or members of an easily identifiable group for past conduct or activity. The limitation does not apply to statutes prescribing the extent and nature of punishment for a crime where guilt is to be judicially determined. This distinguishes the instant situation from that in United States v. Brown. There are other constitutional safeguards designed to afford protection against legislative excess or abuse of power in regard to the nature and extent of punishment. Section 222.020 deals with the rights and responsibilities of convicts and insofar as presently involved renders the convict subject to prosecution for a crime committed in the penitentiary or while under sentence and requires that the sentence shall not commence to run until the expiration of the sentence under which he is held. The petitioner has found no case attacking such a statute on this ground. Clearly, it is not void as a bill of attainder. See also Communist Party of United States v. Subversive Activities Control Board, supra, 81 S.Ct. at page 1406[29].

In two other specifications, the petitioner charges that § 222.020 is unconstitutional in that it is a special law in violation of Art. 3, § 40(30) of the Missouri Constitution, that it deprives him of equal protection of the law in violation of the 14th Amendment of the United States Constitution, and Art. 1, § 2, of the Missouri Constitution, and that it denies him due process of law in violation of the 14th Amendment of the U. S. Constitution, and Art. 1, § 10, of the Missouri Constitution. Section 546.480 is attacked as unconstitutional on these same grounds. Section 222.020 it further attacked on the ground that is imposes cruel and unusual punishment and results in double punishment in violation of Art. 1, § 21, of the Missouri Constitution, which is the same as the 8th Amendment of the U. S. Constitution.

The 14th Amendment of the U. S. Constitution provides, inter alia, that no state shall deny any person within its jurisdiction the equal protection of the laws. Art. 1, § 2, of the Missouri Constitution, states that all persons are entitled to equal rights and opportunity under the law, and Art. 3, § 40(30), provides that the general assembly shall not pass any local or special law where a general law can be made applicable and whether a general law could have been made applicable is a judicial question. The general purpose of these federal and state provisions is to prevent invidious discrimination. Statutory classification does not violate constitutional limitation if all persons in the same class are treated with equality. Walters v. City of St. Louis, 364 Mo. 56, 259 S.W.2d 377, 386[11], affirmed 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660. Federal and state decisions cited by the petitioner present no conflict with these rules. The judicial question presented is whether the statute can properly be said to exclude persons of the same class. Marshall v. Kansas City, Mo., 355 S.W.2d 877, 884[12], 93 A.L.R.2d 1012.

The class of persons with whom we are concerned under § 222.020 is any convict who “commits any crime in an institution of the department of corrections, or in any county of this state while under sentence.” The category includes a convicted person who has been placed on parole. State v. Hicks, Mo., 376 S.W.2d 160, 163 [6]. The petitioner argues that this does not include all persons imprisoned anywhere in the state, nor all convicted of felonies or misdemeanors, and attacks the policy of singling out convicts to the exclusion of non-convicts for cumulative sentencing. This is a question of policy for legislative determination in the first instance. It requires no imagination to think of good reasons for so providing. If it were not so, a convict under a long-term sentence in the department of corrections could offend with impunity because it is as easy to serve several concurrent sentences as a single one. The statutory provision makes cumulative sentencing operative on all such convicts alike. The classification is a proper one and does not violate the constitutional prohibitions against special laws or equal protection of the laws.

The petitioner also attacks § 546.-480 on the ground that it offends the constitutional provisions against special laws and equal protection of the laws. The same line of authorities is relied on as have been fully considered in disposing of the same sort of attack on § 222.020. As in the previous instance, it is conceded that the statute, although it has been in existence since 1879, has never been attacked on this ground. Section 546.480 in substance provides that when any person has been convicted of two or more offenses before he has been sentenced on either, the imprisonment for the second or subsequent conviction shall commence at the termination of the imprisonment to which he shall have been sentenced upon the prior conviction. The petitioner presents numerous arguments and examples which, if accepted as valid, would deny, in effect, all legislative power to classify — a result not contemplated by the constitutional limitation. We find them tenuous and without merit. Again the purpose is to achieve greater equality in sentencing and to avoid disparity in this category. The classification in § 546.480 is not unreasonable, arbitrary or capricious and does not violate constitutional provisions relating to special laws and equal protection under the laws.

It is further contended that the application of the cumulative sentencing provision of § 222.020 to the petitioner deprives him of due process of law in violation of the federal and state constitutions in that “it imposes cruel and unusual punishment and in effect results in double punishment.” Amendment 8 to the United States Constitution specifically provides that cruel and unusual punishment shall not be inflicted. Missouri has an identical constitutional provision in Art. 1, § 21. Exemption from cruel and inhuman punishments is one of the immunities or privileges guaranteed to a citizen of the United States by the 14th Amendment. O’Neil v. State of Vermont, 144 U.S. 323, 12 S.Ct. 693 [4], 36 L.Ed. 450. State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 376[4], 91 L.Ed. 422, ascribes the application of the 8th Amendment to the due process clause of the 14th Amendment. Which view is correct is not material because the Missouri constitution affords the same protection. In Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, the United States Supreme Court held that a state law which made a status of narcotic addiction a criminal offense for which the addict could be prosecuted at any time before he reformed and for which he could be punished by 90 days imprisonment inflicted a cruel and unusual punishment in violation of the 14th Amendment. The opinion in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, demonstrates largely by comparisons that long-term imprisonment combined with a number of “accessories” as additional punishment was cruel and unusual for the crime of falsification of a public record.

The petitioner asserts that in addition to the punishments for attempted escape and offering violence to a guard, he is being punished under § 222.020 in that these sentences must be served consecutive to the sentence under which he was being held; that he was sentenced by the court under the Habitual Criminal Act, § 556.-280; that he lost his time off for good behavior under § 216.355, subd. 1; and that the sentences for attempted escape and offering violence cannot be served concurrently by reason of § 546.480. He says that a “non-convict” who aided an attempted escape would not be subject to the provisions of all these statutes. This phase of the argument has been disposed of by our holding that § 222.020 was not an improper classification creating a special law and a violation of the provision for equal protection. The problem with which we are now confronted is whether the consecutive nature and extent of imprisonment constitutes cruel and unusual punishment. Our conclusion is that it does not.

We start with the proposition that fixing the limits of punishment is primarily a legislative function which is limited only by the constitution. State v. Nord, Mo., 286 S.W.2d 775, 776[2], The legislative authority has the right to classify with reference to the evil to be prevented and there is no constitutional requirement that the legislation must reach every class to which it might be applied. McClellan v. Kansas City, Mo., 379 S.W.2d 500, 506[15,16]. Taken individually, all of the statutes of which the petitioner complains have a beneficial purpose and are designed to encourage good behavior and to prevent lawlessness. None of them considered separately violate the prohibition against cruel and inhuman punishment. There is no sound basis for petitioner’s complaint that his attempted escape and threatened violence ran afoul of statutes which evoked the consecutive sentences. State v. Whitley, Mo., 382 S.W.2d 665, 667[5]. Sections 222.020 and 546.480 and the punishment resulting from their application to the petitioner do not violate constitutional guarantees against cruel and inhuman punishment or constitute “double punishment”.

In points 4 and 8 of his brief the petitioner charges generally and specifically that §§ 222.020 and 546.480 violate the due process of law provisions of the 14th Amendment of the United States Constitution and similar provisions of the state constitution. We have considered all aspects of the due process clause which are alleged to have been violated together with all other constitutional questions presented and find them to be without merit. Accordingly, we find that §§ 222.020 and 546.480 are not vulnerable to the attacks made on their constitutionality.

The petitioner further contends his four-year and five-year sentences should run concurrently with each other and with his previous fifteen-year sentence since there is no provision to the contrary in the judgments and sentences or in any valid, controlling statute. The contention that §§ 222.020 and 546.480 are invalid have been determined adversely to the petitioner. The further contention is that neither of the statutes are applicable and that the judgments and sentences permit the sentences to be served concurrently. Authorities cited by the petitioner to the effect that sentences shall run concurrently where the judgment is silent on the point are cases not within the purview of the statutes.

While both statutes affect the extent of the convicted person’s punishment, they operate in different areas, and one or both may be applicable in a given situation. If a person under sentence commits a single additional offense, § 222.020 alone applies and makes the additional term consecutive to the one he was serving. If he commits multiple additional offenses, then § 546.480 may be applicable to the additional offenses and determines that the additional terms must be served consecutively to each other depending on whether he is convicted on two or more offenses before sentence is pronounced on him for either offense. Regarding § 222.020 it is stated in State v. Hicks, Mo., 376 S.W.2d 160, 163[4, 5], that: “The statute not only fixes unalterably the order of serving the sentences, but it makes them consecutive, and no provision of a judgment may change this.” To the same effect, see Stanfield v. Swenson, 381 F.2d 755, 758[2], State v. Testerman, Mo., 408 S.W.2d 90, 92[1], State v. Campbell, Mo., 307 S.W.2d 486, 490[4]; 356 U.S. 922, 78 S.Ct. 708, 2 L.Ed.2d 718, and Higlin v. Kaiser, 352 Mo. 796, 179 S.W.2d 471, 473[6]. Section 546.480 also has been held mandatory and in situations falling within its terms leaves the trial court no authority to impose any sentence other than a cumulative one. State v. Harris, 336 Mo. 737, 81 S.W.2d 319, 322[2], Both statutes are applicable and controlling in the circumstances of the petitioner’s convictions and together determine that the three sentences must be served consecutively.

The petitioner also asserts that §§ 222.-020 and 546.480 are not applicable to the four-year and five-year sentences because the petitioner was sentenced pursuant to the Habitual Criminal Act, § 556.280, the provisions of which conflict with and prevail over §§ 222.020 and 546.480. Although presented as separate points, the contentions and the supporting authorities in each instance are practically the same. Insofar as here pertinent, § 556.280, as amended in 1959, provides that if any person convicted of a penitentiary offense shall be sentenced and placed on probation, paroled, fined or imprisoned therefor and subsequently commits an offense for which he “could be punished by imprisonment in the penitentiary, then the person shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted.” Thus the judge, and not the jury, in a habitual criminal case determines the punishment “provided by law” which the convicted person shall receive. The petitioner urges that the mandatory cumulative sentence provisions of §§ 222.020 and 546.480 are inconsistent and in conflict with the provision of § 556.280 that the person “shall receive such punishment provided by law * * * as the trial judge determines after the person has been convicted.” The petitioner says § 556.280 gives the trial judge discretion to fix the punishment and this prevails over provisions of the statutes in question requiring the terms to be served consecutively because § 556.280 was enacted later in point of time.

In construing statutes which appear to be in conflict, the court must harmonize such statutes, if possible, with the general legislative purpose and give force and effect to each. State v Crouch, Mo., 316 S.W.2d 553, 554[2]. The statutes present no conflict and may be readily harmonized. The Habitual Criminal Act authorizes the judge to impose such punishment as is “provided by law”. Sections 222.020 and 546.480 are a part of the law provided and are binding on the judge. He is authorized to determine the length of the term within the limits provided by law, but he cannot provide concurrent sentences when §§ 222.020 and 546.480 are applicable. A similar contention was denied in State v. Taylor, 323 Mo. 15, 18 S.W.2d 474, 475-476[3]. See also State v. McClanahan, Mo., 418 S.W.2d 71, 74[4, 5].

The petitioner’s final contention is that § 546.480 applies only where two or more sentences are imposed at the same term of the same court and is inapplicable here because the petitioner was convicted in different courts and at different terms. The petitioner concedes that “there are no Missouri cases squarely holding that section 546.480 applies only to two or more convictions at the same term of a single court”, but places his reliance largely upon Ex parte Meyers, 44 Mo. 279, 281 (1869), which he recognizes was “thoroughly discredited” in State ex rel. Meininger v. Breuer, 304 Mo. 381, 264 S.W. 1, decided by the court en banc in 1924. He contends, however, that the Meininger decision did not disapprove the statement in the Meyers case that the statute, now § 546.480, applies only where a person is convicted of two or more offenses at the same term. Meyers was sentenced to a two-year term of imprisonment for grand larceny and at a subsequent term of court of the same court was convicted and sentenced on another indictment for grand larceny to a period of three years. The court held he could not again be put on trial for another offense until he had served the term of imprisonment previously imposed because the court had lost jurisdiction to do so. Section 546.480 applies only when the person has been convicted of two or more offenses before he is sentenced for either offense. It may be granted that the most frequent application of the statute will be where a defendant is convicted on several counts of an indictment or where he pleads guilty to several charges in the same court before he is sentenced on any of them (State v. Harris, 336 Mo. 737, 81 S.W.2d 319, 322); but the statute is not so limited. The statement relied on was not necessary to the Meyers decision. We doubt that it survived the Meininger attack, but if it did, it is now disapproved. See also State ex rel. Billings v. Rudolph, 322 Mo. 1163, 17 S.W.2d 932, 933.

In accordance with the general rule, statutes relating to punishment for a criminal offense will be construed in accordance with the legislative intention. 21 Am.Jur.2d Criminal Law § 579, p. 543. The Meininger opinion treats the subject exhaustively and demonstrates that Meyers was out of harmony with then existing decisions which were not called to the attention of the court. It shows that the courts had the authority to impose cumulative sentences apart from the statute, and the purpose of the statute was to make uniform and mandatory a matter which judges sometimes overlooked or failed to make certain at the time of sentencing. See 20 St. Louis Law Review 370.

Section 546.480 does not expressly or by implication limit its application to sentences imposed at the same term of court. If there ever was any need for such limitation growing not out of the statute but out of the legal effect of the expiration of a term of court, such need does not now exist. S.Ct. Rule 31.03 provides: “The expiration of a term of court shall in no way affect the power of the court to do any act or take any proceeding which it is otherwise by law or by these Rules authorized to do or take in any case pending before the court.” See also S.Ct. Rule 4401(c), and § 506.060, subd. 3. The function of court terms in Missouri is now largely administrative in character. We cannot read into the statute an intention that its application shall be limited to sentences imposed at the same term of court.

“Jurisdiction to inflict cumulative punishments does not depend on whether the separate convictions were had before the same court but upon whether the convicted felon had in fact committed separate and distinct violations of law which merited separate, and therefore cumulative, punishments.” 21 Am.Jur.2d Criminal Law § 548. See also 24B C.J.S. Criminal Law § 1994. Section 546.480 makes mandatory that which the courts had authority to do but sometimes omitted or left in doubt. The need of such legislative provision is even more appropriate where the sentences are imposed by different courts and the court imposing the later sentence may not know or be fully informed as to the previous sentence with the result that without the statute the later sentence might be construed as concurrent and in effect impose no punishment for the additional offense. The contention that § 546.480 does not apply to the sentence of five years for offering violence to a guard and to the four 'ear term for attempted escape is denied.

We have considered all of the petitioner’s contentions and find them to be without merit. Accordingly the writ of habeas corpus is discharged and the petitioner is remanded to the custody of the respondent.

All concur except HOLMAN, C. J., and DONNELLY, J., not sitting.