author: HENLEY, Judge. STORCKMAN, Chief Justice.

text:
    STATE of Missouri, Respondent, v. Earl Eugene NICKENS, Appellant.
    No. 50718.
    Supreme Court of Missouri, En Banc.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    J. Paul Allred, Jr., David L. Campbell, William D. Mykins and Martin Schiff, Jr., St. Louis, Jules B. Gerard, St. Louis, of counsel, for defendant-appellant.
   HENLEY, Judge.

Defendant appeals from a judgment and sentence imposing the penalty of death. He was charged by indictment in usual and common form with murder in the first degree and tried as having committed homicide in the perpetration of robbery. Section 559.010, RSMo 1959, V.A.M.S. His plea was: “not guilty by reason of mental disease or defect excluding responsibility.” Section 552.030, paragraph 2, RSMo 1959 (1965 Cumulative Supplement), V.A.M.S. A jury found him guilty and, as indicated, assessed his punishment at death. Section 559.030, RSMo 1959, V.A.M.S.

Defendant has been ably represented by the same court-appointed counsel throughout all proceedings, including arraignment, pre-trial hearings on motions to suppress evidence and to dismiss the indictment, a trial in June, 1963, resulting in a mistrial due to illness of defendant, a six-day trial in December, 1963, resulting in his conviction, and briefing and extended oral argument in this court.

Two closely related assignments of error briefed by defendant dictate that the case be reversed and remanded for another trial. Therefore, a brief summary of the evidence will suffice.

On March 4, 1963, at about 2:20 P.M., defendant, with a pistol pointed at his victim, held up and robbed Mrs. Maxine Butler in her grocery store located at the southwest corner of Chippewa and Illinois Streets in the southern portion of the City of St. Louis, taking approximately $100 and a carton of cigarettes. Leaving the scene of this robbery, he drove in his automobile in a general northwestwardly direction. In the meantime the police were notified and given a description of the robber and his vehicle. As defendant turned left off of Grand Avenue onto Castleman Avenue (3.2 miles northwest of the scene of the robbery and about 20 or 25 minutes thereafter), he was stopped by Police Officer Donald Sparks, who was driving a marked police car. Defendant pulled to the north curb of Castleman and stopped fifty or so feet west of Grand near a beauty shop in the Saum Hotel. The police car pulled to the curb at an angle and stopped behind defendant. As Officer Sparks alighted from the left side of the police car defendant, sitting at the steering wheel of his automobile, fired three shots at the officer with a .38 caliber pistol. Two of these bullets struck the officer in the head inflicting wounds from which he died within two hours; the third struck and deflated the left front tire of the police car. The officer’s body, with his pistol still secure in its holster, was found lying in the street parallel to the left side of the police car. Escaping this scene, defendant drove northwestwardly to a parking lot on Vandeventer Avenue where he abandoned his automobile and walked to a nearby tavern known as Crest Lounge at 1640 south Vandeventer. There he ordered a beer and asked the waitress to call a taxicab for him. Leaving the tavern by Laclede Cab he rode to Kingshighway and Lindell Boulevard, got out, and walked to his residence about a block away at 4220 Maryland Avenue. He was arrested there by police at about 4:30 P.M.

As stated, his defense was not guilty by reason of mental disease or defect excluding responsibility for the acts with which he was charged. Whether he suffered such disease or defect was the primary, if not the sole, issue in the case. In support of this defense he offered the testimony of Dr. Robert L. Lam, a neurologist and psychiatrist appointed by the court on defendant’s request. Dr. Lam testified, in substance, that, on the date of this offense and prior thereto, defendant was suffering from a mental disease known as paranoid schizophrenia or, described in a layman’s terms, a split personality; that by reason of this mental disease, defendant was unable to appreciate or understand the significance, nature or quality of his acts and unable to conform his conduct to the requirements of law both at the time of the robbery and at the time of the shooting of Officer Sparks. In rebuttal the state offered the testimony of Dr. James N. Haddock, also a psychiatrist, who had examined defendant at the state’s request.

Dr. Haddock testified, in substance, that his examination disclosed no evidence that defendant suffered from any degree of psychotic disturbance, including any form of schizophrenia, paranoid disorder, affective disorder, or organic disorder either on the date of the killing of Officer Sparks or at any time prior thereto; that defendant did not suffer from paranoid schizophrenia; that defendant has, and has had for sometime, “ * * * a severe character disorder also known variously as [a] psychopathic, sociopathic, or anti-social personality * * manifested by repeated criminal acts * * and * * * anti-social behavior * * * that at the time of the robbery and killing defendant knew and appreciated the nature, quality and wrongfulness of his conduct and was capable of conforming his conduct to the requirements of law.

These opposite medical opinions are based on essentially the same type of subjective and objective examinations of the defendant by each of the doctors. In the course of their testimony each of the doctors related to the jury defendant’s history of repeated criminal acts resulting in convictions and jail, reformatory and prison sentences, and an undesirable discharge from the Navy. This historical information was acquired by each doctor during the course of his examination of defendant. As required by § 552.030, paragraph 4, the court, both orally at the time of its admission and later by instruction, informed the jury that it must not consider such information as any evidence of the guilt of defendant.

While testifying in narrative form from a written report of his examination of defendant, Dr. Haddock was interrupted by an objection from defendant made in anticipation of his reading the following portion of his report:

“ * * * Treatment or rehabilitation of the type of disorder shown by this man would be of no avail with the methods available today. If unrestrained further antisocial acts by this man will undoubtedly recur in the same way as in the past.”

Out of the hearing of the jury, defendant objected and asked the court not to permit the doctor to read the above-quoted portion of his report for the reasons that it was irrelevant and immaterial to the issue of whether defendant was suffering from a mental disease at the time of the act charged, and that the testimony would be highly prejudicial in that it constituted a prognosis of what defendant’s future conduct would be if unrestrained. The court first sustained the objection and then, after a colloquy between court and counsel, reversed its ruling and permitted the doctor to read these two sentences as a part of his testimony. It was understood between the court and counsel for defendant that when the doctor reached this portion of his report defendant’s objection would be considered as renewed and, along with a motion for a mistrial, overruled.

In his closing argument counsel for the state was permitted, over defendant’s objection, to argue:

“ * * * He [referring to counsel for defendant] says, ‘My God, you may come back some day and say, “My God, what have I done?” ’ All of this, of course, is to throw some kind of a scare into you that you might do the wrong thing and all the rest of that nonsense.

“He reads you an instruction that says that this defendant will — if you find him not guilty by reason of mental defect — will go to a hospital until such a time that there is a hearing and some doctor will have to testify that he is all right again. Well, we’ve already had one doctor today, or yesterday, who already testified that he’s not psychotic; should be no problem to get some other problem — to get some other doctor somewhere now that he’s not — that he has no psychosis. And, when next week, next month, next year, five years from now, ten years from now, when — and when he gets back on the street again, a man with this kind of a sickness; that is to say a psychopath, a repeater, a man with this kind of a mind; that is to say an anti-social, a sociopath, a character disorder — what does Dr. Haddock say about him? Treatment or rehabilitation of the type of disorder shown by this man will be of no avail with the methods available today. If unrestrained, further anti-social acts by this man will undoubtedly occur in the same way as in the past.

* * * * * *

“And if unrestrained, further anti-social acts by this man will undoubtedly recur in the same way as in the past and we — are we to say now the same type of boogie man he throws up; are we to say after he hits the street again, ‘My God, what have I done?’ Who do we say that to — the next widow? Who do we say that to when we say, ‘My God, what have I done?’

“This man has no mental disease. This man is a repeater and in that sense he has a character disorder and nothing more. This man is guilty of Murder in the First Degree in the shooting and assassination of that officer.”

Defendant contends that the above-quoted testimony of Dr. Haddock “ * * * was wholly irrelevent and immaterial to any issue of the case, was highly inflammatory, and was calculated to induce the jury to assess defendant’s punishment at death through fear rather than reason.” He says that the issue is his mental condition at the time of the commission of the alleged offense and that although great latitude is allowed in the admission of evidence where the defense is “not guilty by reason of mental disease”, it is not wholly unlimited and is restricted to evidence relevant and material to the issue of his mental condition at the time of commission of the act charged. The authorities cited by defendant and listed below, as well as many others, so hold. In State v. Tarwater, cited in Footnote 2, this court said at 1. c. 486 of 239 S.W.: “No limitation is fixed by law as to the time within which the inquiry as to the mental condition of accused is to be directed, but the facts admitted in evidence should be restricted to those which have some tendency to show the mental condition of accused at the time of the commission of the act charged, as that is the ultimate fact, to he proved under a plea of insanity." Defendant contends that the great latitude allowed in the admission of evidence where this defense is interposed does not extend to the admission of opinion evidence that his mental condition (that is: a character disorder; not a mental disease or defect excluding responsibility) was such that he would in the future commit other crimes if unrestrained; that this evidence had no tendency to show his mental condition at the time of the commission of the act charged. He argues that on the contrary this evidence served to concern the jury with his criminal proclivities and potential for further crime and thereby deprived him of his right to be tried solely for the offense with which he was charged; that this evidence served to impress on the jury that he would, if acquitted, commit the same type of crimes (including the killing of a policeman) and was thus so prejudicial and inflammatory as to deny him impartial consideration of the proper issues.

The state contends that this testimony was relevant to the issue of defendant’s mental condition at the time of the commission of the offense charged, because it refers to the permanence of that condition, an abnormal condition excluded by § 552.-010 as not a mental disease or defect; that is, that the testimony was merely a diagnosis of an existing condition and its extent. We experience no difficulty understanding the first sentence of this testimony as a description or diagnosis of a condition existing at the time of the commission of the act charged. But we experience considerable difficulty with, and cannot, as the state would have us, equate the second sentence solely with a description of an existing condition. It is not a diagnosis; it is more a prognosis, a positive forecast by a medical witness, an expert whose testimony would no doubt weigh heavily with the jury, that one whom he has described as having no more than a character disorder, an habitual criminal, will again commit crime if set free.

The issues for determination by the jury are: first, whether defendant had a mental disease or defect at the time of the commission of the offense charged; and, second, if so, whether the disease or defect was such as would exclude responsibility for his act. If the jury determines that he did have a mental disease or defect excluding responsibility for his act, then its function ceases except to acquit him for that reason. If he is so acquitted, the court shall order him committed to the custody of the director of the division of mental diseases. Section 552.040. Such acquittal makes his restraint mandatory because he has a mental disease or defect excluding responsibility.. Note that Dr. Haddock says that he does not have such disease or defect.

However, if the jury determines that he did not suffer from a mental disease or defect excluding responsibility for his act at the time of its commission, the jury must take one further step. That is, if the jury finds him guilty, it must then assess his punishment.

The doctor may express an opinion to aid the jury in determining the first and second issues, but when he expresses his opinion that the accused does not have a mental disease or defect excluding responsibility, his function as an expert stops; it does not extend to recommending punishment. His function as an expert does not extend to expressing an opinion that an accused should be restrained or imprisoned even for the offense with which he is charged. That determination is the exclusive function and province of the jury. The jury may not take into consideration what defendant may or will do in the future in determining either guilt or punishment for the offense for which he is on trial. Certainly then this expert should not be permitted to express an opinion as to defendant’s potential for crime, that he “undoubtedly” will commit similar crimes in the future “if unrestrained.”

“Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible * * * For the purpose of determining whether or not the defendant, if found guilty of a capital offense, shall be sentenced to death or life imprisonment”; however, evidence that one did not suffer from a mental disease or defect excluding responsibility but should be imprisoned lest he commit crimes in the future, lest he commit “* * * further antisocial acts [which] will undoubtedly recur in the same way [murder, robbery, larceny?] as in the past”, is highly prejudicial to defendant’s right to be tried only for the offense with which he is now charged and is not admissible.

Defendant contends that the above-quoted portion of the closing argument of counsel for the state, as an appeal to the jury to convict and impose the death penalty, was highly prejudicial to his defense of “insanity”; that the court erred in permitting counsel so to argue. He says this argument cast him as a potential threat to society and was designed to engender fear in the minds of the jury that if he were acquitted on his defense of insanity, he soon would be discharged to kill again.

The state contends that this argument was proper response and retaliation to argument of defense counsel. In his argument, counsel for defendant referred to an instruction given by the court. This instruction informed the jury, in substance, that if they found defendant not guilty by reason of mental disease or defect excluding responsibility, it would be the duty of the court to order him committed to the custody of the director of the division of mental diseases; that he could be released from such commitment only on order of the trial court after a determination by that court that he did not then have and was not likely to have a mental disease rendering him dangerous to himself or others or unable to conform his conduct to the requirements of law. In considering a similar closing argument by counsel for the state this court said in State v. Johnson, Mo., 267 S.W.2d 642, l.c. 645-646:

“The argument of counsel for the State culminating in his telling the jury defendant would be out in two months was urged without reference to the jury’s consideration of the evidence tending to prove or disprove that defendant was insane. The argument was used in such a way as to urge the jury to convict defendant even though the jury may have believed from the evidence that defendant was insane. In effect the whole of the quoted argument tended to incite the jury, in making their choice between conviction and acquittal on the ground of insanity, to ignore defendant’s legal defense of insanity and the evidence in support or refutation thereof and to convict, and to ignore and disparage (although the jury may have believed defendant was insane), the law making provision for the jury’s findings when a defendant is acquitted on the sole ground of his insanity, Section 546.510 RSMo 1949, V.A.M.S. And, in support of the argument to convict, State’s counsel was attempting to engender in the minds of the jurors the fear that if defendant were acquitted on his defense of insanity, defendant would be soon discharged to rape again. We are of the Opinion that the quoted argument of State’s counsel was not in legitimate retaliation to the argument of defendant’s counsel quoted supra; and we believe that the trial court’s failure to sustain the objection of defendant’s counsel and to take proper action to purge the prejudicial effect of such argument was reversible error.” Also see: State v. Cornett, Mo., 381 S.W.2d 878.

What was said in Johnson, supra, is particularly appropos here. We hold that this argument was not proper response and retaliation to argument of the defendant; that it was an appeal to the prejudices of the jury for a conviction and the death penalty; that it was highly prejudicial to the defense of insanity; and, that the court erred in permitting counsel so to argue.

There is another facet to the state’s closing argument that calls for reversal and remanding of the case. Counsel twice described defendant as “a repeater”, thus referring to his prior convictions as a reason for conviction and imposition of the death penalty. This argument was in the face of the statute and the court’s instruction that such information received by Doctors Lam and Haddock from defendant and related by them to the jury was admitted in evidence solely on the issue of defendant’s mental condition and was not to be considered by the jury as any evidence of his guilt. The defendant did not take the stand, so there can be no contention that this argument referred to his credibility as a witness. This evidence of defendant’s prior convictions was elicited from the doctors as a part of defendant’s history and background as an element to be considered in determining his mental condition at the time of the commission of the act charged. It was elicited solely for that purpose; it was admissible from these witnesses solely for that purpose; and it could be considered by the jury solely for that purpose. To refer in argument to evidence elicited for this exclusive purpose as a reason for conviction or imposition of the maximum punishment is an abuse of defendant’s rights. A similar situation arose in State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 93-94, 103 A.L.R. 339 [9]. In Jackson, the defendant was charged with rape; the state’s attorney announced at the beginning of the trial he would waive the right to prosecute under the habitual criminal statute and would ask for the death penalty under the rape statute; evidence was elicited from defendant that he had been convicted of prior felonies. This court said at l.c. 94: “ * * * The state’s election.not to invoke the habitual criminal statute was tantamount to a declaration that it would not seek aggravation of the punishment because of the former convictions but would proceed against the appellant under the statute applicable to first offenders. And yet, after eliciting from appellant the admission that he had been convicted of felonies in Iowa and Illinois — ■ for the sole purpose of affecting his credibility as a witness — the assistant circuit attorney played it up prominently in his closing argument as a reason for the infliction of the supreme punishment of death.” The court said this line of argument was a flagrant abuse of defendant’s legal rights and reversed and remanded the case. Also see: State v. Mobley, Mo., 369 S.W.2d 576, 579-581 [1-6]; State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 526-529 [1-6]; State v. Baber, Mo., 297 S.W.2d 439, 442-443 [9].

The state contends that the trial court may not be convicted of error for permitting the above argument, because after the court overruled defendant’s objection, defendant did not request that the court take affirmative action such as a reprimand of state’s counsel or declaration of a mistrial. In view of the court’s ruling on his objection, defendant was not required to seek the affirmative action the state mentions; the ruling indicates such request would have been to no avail.

Defendant has briefed other assignments of error but because of the conclusion we have reached we need not discuss them.

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

HOLMAN, FINCH, DONNELLY, JJ., and STONE, Special Judge, concur.

STORCKMAN, C. J., dissents in separate dissenting opinion filed.

EAGER, J., dissents.

HYDE, J., not sitting.

Dissenting Opinion

STORCKMAN, Chief Justice.

The testimony of Dr. James N. Haddock that the defendant could not be rehabilitated and if not restrained would commit other offenses in the future was unnecessary and improper, but I doubt if it was prej-udicially erroneous in view of the nature of the defense and all the circumstances in the case. Moreover, I think the opinion unduly and unnecessarily restricts the argument to the jury that counsel for the state can make in this and other kinds of criminal prosecutions.

Therefore, I dissent.

      . Section 552.030, paragraph 1, RSMo 1959 (1965 Cumulative Supplement), V.A.M.S.; State v. Brizendine, Mo., 391 S.W.2d 898, 901-902 [2-4]; State v. Moore, Mo., 303 S.W.2d 60, 69 [11].

      . State v. Moore, supra; State v. Jackson, 346 Mo. 474, 142 S.W.2d 45, 48-49 [2-4]; State v. Tarwater, 293 Mo. 273, 239 S.W. 480, 486 [17].

      . Section 552.030, paragraph 3(2), ESMo 1959 (1965 Cumulative Supplement) Y.A. M.S.

      . In State v. Garrett, Mo., 391 S.W.2d 235, 240-242 [3], decided after the instant case was tried, this court held that the trial court properly refused to give a like instruction requested by the defendant; that “Such an instruction has no legitimate bearing on any fact issue which the jury must decide; * * * [and] would divert the jury from the real merits of the insanity issue by the introduction of this extraneous consideration [of the result of an acquittal by reason of insanity].” Note the observation at l.c. 242 as to the type of controversies the court said may arise (and did arise in the instant case) in final arguments if the jury is permitted to consider the result of its acquittal by reason of insanity.

      . Section 552.030, paragraph 4, RSMo 1959, (1965 Cumulative Supplement), V.A.M.S.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Bob Fred ASHE, Appellant.
    No. 51798.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Donald R. Wilson, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & State, Kansas City, for appellant.
   HIGGINS, Commissioner.

On June 22, 1960, appellant was convicted by a jury of robbery in the first degree, and under Section 556.280, V.A.M.S., was sentenced by the court to 35 years’ imprisonment, which judgment was affirmed. State v. Ashe, Mo., 350 S.W.2d 768. He has since moved under Criminal Rule 27.26, V.A.M.R., to vacate that judgment and sentence and has appealed from the order denying his motion without a hearing.

Statements of facts in more detail may be found in State v. Ashe, supra, and State v. Johnson, Mo., 347 S.W.2d 220, but for purposes of this proceeding a brief statement will suffice. In the early morning of January 10, 1960, a poker game was in progress in a home in Lees Summit, Jackson County, Missouri. A substantial sum of money was on the table when four men armed with a shotgun and pistols entered the room and took the money and money, rings, watches, and other valuables from the six players. Shortly afterwards appellant, Eric Larson, Thomas Brown, and John Edward Johnson were arrested and charged with robbery and with stealing an automobile. A preliminary hearing was held on January 28, 1960, and all four men were ordered held for trial in the circuit court. Thereafter seven informations were filed involving appellant among which were C-29766 charging robbery of one Knight and C-29768 charging robbery of one Roberts. On May 2, 1960, appellant was acquitted of charge C-29766, and on June 20, 1960, he was brought to trial on charge C-29768, at which time he filed a Motion to Dismiss Autrefois Acquit based on the acquittal of May 2, 1960. The motion was overruled and trial resulted in the verdict and judgment previously described. The only point on the original appeal was that the court erred in not sustaining the motion to dismiss.

Appellant now alleges that “the court erred in failing to sustain * * * (his) motion to vacate, the appellant having been placed in former jeopardy and acquitted upon the same alleged offense in a cause wherein the identical evidence was introduced.” He admits that the “Court * * * held this not to have been double jeopardy, State v. Ashe, (Mo.1961) 350 S.W.2d 768,” and since this precise issue previously was adjudicated adversely to appellant, he is precluded from litigating the question further by means of a motion to vacate under Rule 27.26, supra. State v. Thompson, Mo., 324 S.W.2d 133, 139[8]; State v. Morton, Mo., 349 S.W.2d 914, 915[2]. Appellant suggests, however, that the decision of this court on original appeal “in view of the great number of recent decisions of the Supreme Court of the United States * * * is no longer in line with authority and should be overruled and the Appellant discharged * * Appellant’s citations of State v. Clark, 220 Mo.App. 1308, 289 S.W. 963; State v. Toombs, 326 Mo. 981, 34 S.W.2d 61; State v. Bockman, 344 Mo. 80, 124 S.W.2d 1205; Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, and United States v. Maybury (2 Cir. 1960), 274 F.2d 899, do not support his suggestion because they predate the original appeal in this case; and Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 was discussed in the original appeal at 350 S.W.2d l. c. 770. Appellant’s only later citation, Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, is clearly distinguishable. There the jury was sworn to try six counts against defendant and was thereafter discharged because the prosecuting witness essential to two counts was absent. Defendant moved to dismiss those two counts, the move was opposed by the prosecution, and, subsequently, a jury was impaneled to try those counts. The court held that the defendant was twice in jeopardy because the court’s action permitted the prosecution to correct circumstances in which the defendant would have been acquitted, thus permitting a second trial of the exact same charge, a situation different from that in the original appeal of this case.

Appellant charges denial of due process of law saying there was no preliminary hearing prior to the filing of the information upon which he was convicted. This charge is refuted on the face of appellant’s motion because it recites that a preliminary hearing- was held prior to the filing of the several informations against him and his companions; and, despite his statement to the contrary, the record shows that he proceeded to trial without objection in which case the right to object to any defect in connection with the preliminary hearing or lack of such hearing was waived. State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, 302[1]; State v. McMillian, Mo., 383 S.W.2d 721, 722[3]; State v. Small, Mo., 386 S.W.2d 379, 381[3].

Appellant’s motion also charges that he was denied constitutional rights by the refusal of his instruction A and that his trial was by a prejudiced jury and judge. Neither of these assignments is briefed on this appeal and they are deemed waived or abandoned. Criminal Rule 28.02, V.A.M.R.

Appellant contends that he was entitled to a hearing and findings of fact and conclusions of law on his motion, but since the preceding matters are determinable from the face of the motion and from the “files and records of the case” before the court, a hearing, findings, and conclusions were not required, Rule 27.26, supra; appellant was entitled to no'relief, and the judgment is affirmed.

HOUSER, C., concurs.

WELBORN, C., not sitting.

PER CURIAM:

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

All concur.


text:
    STATE of Missouri, Respondent, v. Billy George WAGONER, alias Billy George Wagner, Appellant.
    No. 51622.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.
    Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Taken as submitted by appellant.
   HIGGINS, Commissioner.

On June 13, 1963, Billy George Wagoner, alias Billy George Wagner, waived his right to counsel and entered a plea of guilty to a charge of burglary and stealing for which he was sentenced to five years’ imprisonment for each crime, the sentences to run consecutively. He has since moved under Criminal Rule 27.26, V.A.M.R., to vacate that judgment and sentence and has appealed from the order denying his motion without a hearing.

In his motion appellant contended that his right to counsel under Sections 10 and 18(a), Article I, Constitution of Missouri, V.A.M.S., Amendment XIV, Constitution of the United States, Sections 545.820 and 544.170, V.A.M.S., Criminal Rule 29.05, V.A.M.R., Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799, Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, was denied him by the trial court because it was not waived intelligently in that he “is, and has been all of his life, a paranoic incompetent, where his mental delusions render him incapable of comprehending the meaning or the signification of intelligently waving his rights to Counsel,” and “thereby he is illegaly and unconstitutionally imprisoned.”

It does not appear that relief has been granted on a motion under Rule 27.26, supra, for an absence of intelligent waiver of counsel. It has been inferred, however, that waiver of the right, not intelligently made, would be grounds for setting aside a judgment of conviction, State v. Glenn, Mo., 317 S.W.2d 403, State v. McDonald, Mo., 343 S.W.2d 68; but mere conclusions in the motion setting out no facts which would authorize a finding that defendant was not competent to waive intelligently his right to counsel are not sufficient to require a hearing on the motion, and a hearing would not be required where such conclusions are refuted by the record. State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 807 [7]; State v. Engberg, Mo., 391 S.W.2d 868, 871 [6]; State v. Ninemires, Mo., 306 S.W.2d 527, 530 [8]; State v. McDonald, supra, l. c. 71 [4] of 343 S.W.2d; State v. Glenn, supra, l. c. 408 [4, 5] of 317 S.W.2d. See also State v. Lillibridge, Mo., 399 S.W.2d 25, where hearing was not required on defendant’s allegation that solitary confinement for two and a half months prior to his being taken into court had such a psychological effect on him that he could not and did not intelligently waive his right to counsel.

The judgment and sentence attacked by appellant’s motion recites: “ * * * comes the defendant, in person, * * * but without counsel, and the Court advises the defendant of the nature of the crime charged against him and of the range of punishment for such crime, and the Court gives defendant an opportunity to exercise his right to be represented by counsel and to consult with a friend concerning his case for a reasonable time, and the Court having informed defendant of his right to counsel and explained wherein the exercise of said right might be of benefit to defendant, and having found that defendant was mentally able and was sufficiently informed to decide his need for counsel, and the Court having offered to appoint counsel for defendant to conduct his defense, but defendant having waived such right to counsel, and the defendant then says he cannot deny the charge against him and that he is guilty in the manner and form as charged in the Information, and enters his plea of guilty * * The judgment entry shows further that the defendant thereafter was granted allocution at which time he was informed by the court of his guilty plea and was asked if he had any legal cause to show why judgment should not be pronounced and, still failing to show such cause, he was then sentenced.

Appellant does not now state that he was not guilty, or that he was not offered counsel or that he then wanted counsel, but would refute the foregoing record by his factually unsupported allegation that his being a “paranoic incompetent” rendered him incapable of intelligent waiver of his right to counsel. Such allegation, in view of this record, was not sufficient to require a hearing on appellant’s motion. The judgment entry shows that the court advised appellant of the nature of the crime, his right to counsel, and the benefits of counsel. It shows also that the court offered to appoint counsel; that appellant declined the offer, waived his right to counsel, and pleaded guilty. Finally, the record shows that the court found specifically that defendant was competent and capable in respect to deciding his need for, and waiver of, counsel; and something more than the conclusion by which appellant would impeach the judgment entry is necessary in order to demand a second hearing on the. previously adjudicated issue of whether appellant’s waiver was intelligently made. State v. Lillibridge, supra, l. c. 29 [6]; State v. Harrison, Mo., 299 S.W.2d 479, 482 [4]. This is to say that appellant has not met his burden to allege facts, as distinguished from a conclusion, which if true would authorize a finding that he was not competent to waive intelligently his right to counsel. State v. Glenn, supra.

Thus, upon the face of the motion and from the “files and records of the case” before the court, a hearing was not required, Rule 27.26, supra; appellant was entitled to no relief, and the judgment is affirmed.

HOUSER, C., concurs.

WELBORN, C., not sitting.

PER CURIAM.

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

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Leroy GOOD, Appellant.
    No. 51831.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Donald R. Wilson, Asst. Atty. Gen., Jefferson City, for respondent.
    Dewey S. Godfrey, Jr., St. Louis, for appellant.
   HOUSER, Commissioner.

Leroy Good appeals from the judgment of the Circuit Court of the City of St. Louis, Division No. 1, overruling his motion, filed under Criminal Rule 27.26, V.A.M.R., to vacate the judgments and sentences imposed in three cases.

On June 26, 1963 appellant was sentenced to three consecutive five-year terms in the penitentiary on three separate charges, two of which were statutory rape and one of which was sodomy. After he was confined in the penitentiary he filed this proceeding, alleging that he was sentenced in violation of state and federal constitutions and laws, for the reason that the sentences “are unjust, severe, arbitrary and amount to excessive punishment and that at the time he was sentenced he had been advised by his counsel of record * * * that he was to receive two years on each of said cases, said two-year sentences to run concurrently and not consecutively. * * * that this Petitioner was unable to understand and comprehend the meaning of the Court, when, during the course of said sentencing, he was asked if he fully understood that the Court could sentence him to the full limit of the punishment as allowed by the statutes of the State of Missouri and that at the time of being so questioned by the Court he remained under the full idea and comprehension that he was to be sentenced to a sentence of two years concurrently on all three charges.”

The circuit judge conducted a hearing on the motion on October IS, 1965. Appellant was present and was represented by counsel. Appellant testified, as did his former counsel, Mr. Curtis, who represented him when he entered his pleas of guilty. A transcript of the hearing of June 26, 1963 was introduced in evidence. Appellant originally pleaded not guilty. On the date last mentioned he and Mr. Curtis appeared in court, withdrew the pleas of not guilty and entered a plea of guilty to each of the three charges, whereupon counsel for the state recommended two years on each charge, to run concurrently, for a total of two years. The following then transpired:

“The Court: You understand that I’m not bound by that. You understand that Mr. — your name is Leroy Good?
“Mr. Good: Yes, Your Honor.
“The Court: You have been convicted on three prior occasions, is that correct?
“Mr. Good: Yes, sir.
“The Court: And you understand in the case here, No. 411-L, that you are charged with Statutory Rape? You understand that Mr. Curtis who has served as your attorney indicated that you wanted to enter a plea of guilty to that charge?
“Mr. Good: Yes, I told Mr. Curtis that.
“The Court: You did that of your own free will?
“Mr. Good: Yes, Your Honor.”

The court then questioned appellant for some time and in considerable detail with respect to the facts in each of the three cases, and ascertained that in each case appellant had voluntarily authorized his attorney to plead guilty for him. Then the following occurred:

“The Court: You understand there has been no promise made to you of any kind or character?
“Mr. Good: No promise, never made any promise, no.
“The Court: You understand that you’re entitled to trial by Jury in the event you see fit to have a jury trial?
“Mr. Good: I understand that, yes, sir.
“The Court: You understand that the Court is not bound to take any recommendation of the State?
“Mr. Good: Recommendation of the State ?
“The Court: You understand that I’m not bound to take any recommendation of any kind or character ?
“Mr. Good: Yes, sir.
“The Court: You understand that?
“Mr. Good: Yes, sir, I do, yes.
“The Court: I will not take the recommendation of the State in Cause No. 411-L. Is there any reason you should not be sentenced at this time.
“Mr. Curtis: No legal reason why he shouldn’t be sentenced.
“The Court: All right. 411-L, on Indictment for Statutory Rape, the defendant will be sentenced to five years in the Missouri State Penitentiary.
“Any legal reason why you should not be sentenced in Cause No. 412-L?
“Mr. Good: No, Your Honor.
“The Court: Cause No. 412-L on the charge of Sodomy the defendant will be sentenced to five years in the Missouri State Penitentiary. Such sentence shall run consecutively to the sentence imposed in Cause No. 411-L, and the total is ten years.
“Cause No. 413-L, any legal reason why you should not be sentenced?
“Mr. Good: No, Your Honor.
“The Court: The defendant will be sentenced to a term of five years in the Missouri State Penitentiary to run consecutively to the sentence heretofore imposed in 411-L and 412-L for a total of fifteen years. That’s for the three cases.
“Do you want to make application for jail time?
“Mr. Curtis: Yes, Your Honor.
“The Court: Jail time will be allowed in the three matters. The Defendant will be ordered committed to the Department of Corrections for, to serve the sentences and be remanded to the custody of the Sheriff at this time.
“Mr. Good: Did I hear you correctly, Your Honor, Oh, please.
“The Court: Tell me what you thought you heard?
“Mr. Good: Did you say fifteen years in the Penitentiary?
“The Court: Yes, five, five and five.
“Mr. Good: Oh, Your Honor, please, sir.
“The Court: Remanded to the custody of the Sheriff.
“Mr. Good: Oh, oh. * * * ”

At the hearing on October 15, 1965 appellant testified that while awaiting trial Mr. Curtis visited him at the jail and told him that the circuit attorney would recommend a two-year sentence in the penitentiary, to run concurrently on all three charges; that he entered a plea of guilty to these charges with that in mind, and that he thought he would receive and expected to receive a sentence on that basis, that is, two years on each charge, to run concurrently, and not consecutively, for a total of two years. He remembered and acknowledged the accuracy of the record of the questions and answers given at the hearing of June 26, 1963, including the fact that the judge had told him that he was not bound by the circuit attorney’s recommendation of two years and that he had assured the court that no promises were being made for his plea of guilty. He conceded that he had made no objection after each five-year sentence was imposed, claiming that he had been thinking only of the two-year recommendation. He further claimed that prior to entering the pleas of guilty he was not informed by the court or by anyone acting for the court as to the range of punishment for charges of statutory rape and sodomy, and that he did not know exactly what maximum sentence he could receive.

Mr. Curtis on June 26, 1963 had been a member of the bar for one year. He testified that he advised appellant that the circuit attorney would recommend two years on each count, to run concurrently; that appellant “may have known” that the recommendation was not binding on the judge — that he so informed his client — but that based on his experience as a lawyer and what other lawyers had told him, he informed appellant that the recommendation of the circuit attorney was always accepted —that for all practical purposes the judge was sure to accept the recommendation. Mr. Curtis knew the range of punishment prior to the entry of the pleas but did not remember whether he told appellant the range of punishment. No objection was raised by Mr. Curtis at the time the three sentences were passed and he gave the court no reason why appellant should not be sentenced to five-year terms. After the sentences were passed, perhaps that afternoon, Mr. Curtis asked the judge to set aside the sentences so that not guilty pleas could be entered, but “it was too late.” Mr. Curtis did not file a motion to set aside the sentences and withdraw the pleas of guilty, although he understood that the court had control over the sentences and judgments for thirty days after entry of judgment.

There was in evidence a report to the circuit judge of an examination of appellant at a hospital, dated June 5, 1963, which stated: “Because of his age and the mild degree of organic brain damage, he is not a candidate for any extensive psychotherapy. However, under a certain amount of external controls, it is unlikely that he would repeat his actions with minors in the future as he has demonstrated in the past with these controls. Any form of long term institutionalization would be of no therapeutic benefit, nor would it serve to punish him nor to protect society.”

On this appeal it is claimed that the court erred in failing to fully determine whether appellant knew the exact nature of the charges filed against him; whether appellant knew the full range of punishment that could be imposed for these charges, or whether appellant was proceeding under some misapprehension or mistake in entering the pleas. Appellant’s theory is that he did not know and understand the consequences of his plea; that he was induced to plead guilty by the holding out of hope which proved to be false and that he is the victim of mistake and misapprehension. It is argued that appellant had less than an eighth grade education, some organic brain damage, and a striking personality trait that made it virtually impossible to obtain a direct yes or no answer from him; that when a court knows that a defendant pleading guilty is relying upon receiving a certain number of years of imprisonment the judge, in addition to notifying defendant that the court will not be bound by the recommendation, should tell defendant what the judge has in mind relative to a sentence, ask if he still wants to proceed on his plea of guilty or go to trial, and permit him to withdraw his plea of guilty and consult further with counsel as to further procedure.

The State contends that appellant’s motion states no right to relief under Criminal Rule 27.26, V.A.M.R.; that this procedure may not be used in lieu of an appeal; that the proper procedure would have been to file a motion to vacate and set aside the judgment and sentence, and to appeal from an order overruling the same on the ground that the trial court abused its discretion, as was done in State v. Williams, Mo.Sup., 361 S.W.2d 772. In proceedings under Criminal Rule 27.26 this Court on many occasions has determined whether the defendant understood the consequences of his plea, State v. Bursby, Mo.Sup., 395 S.W.2d 155, 159; State v. Blaylock, Mo.Sup., 394 S.W.2d 364, and whether the defendant was misled or under any misapprehension when he entered his plea of guilty, State v. Williams, Mo.Sup., 391 S.W.2d 227; State v. Waller, Mo.Sup., 382 S.W.2d 668; State v. Harris, Mo.Sup., 382 S.W.2d 642; State v. Richardson, Mo.Sup., 347 S.W.2d 165; State v. Freedman, Mo.Sup., 282 S.W.2d 576, and we will review these questions on this appeal.

Did appellant know the exact nature of the charges filed against him? Of this there can be no question. He testified that during the year 1963 he was indicted by the grand jury on three charges of sodomy, rape and statutory rape, and that he was duly arraigned and entered pleas of not guilty thereon. The charges must have been read to him when he was “duly arraigned.” He was 68 or 69 years of age, and although he had less than an eighth grade education he had served in the Marine Corps in 1920, had been employed for years as a journeyman printer, and his responses to the questions asked indicate that he was intelligent and capable of understanding. Nor was appellant an uninformed novice in sex crimes. In 1950 he was convicted on a charge of rape and two charges of sodomy. He received three concurrent three-year sentences and served time in the penitentiary thereon. At the hearing of June 26, 1963 he was represented by a lawyer of his own choosing, who consulted with him while he was in jail. When he came before Judge Casey on June 26, 1963 he was very carefully informed as to each of the three charges, and in each case was separately and thoroughly questioned by the judge as to the age and the race of the girl involved, the date and place of each offense, exactly what they did together and how they did it, in detail. At the hearing appellant testified that he pled guilty and admitted all of these offenses, stated to the court that there was no question of his guilt and said “I know I should be punished.”

Did appellant know the full range of punishment that could be imposed for these charges? The record does not show that appellant was informed by the court of the minimum and maximum punishment that could be imposed on each charge and that the sentences could run concurrently or consecutively. We have said that it is the duty of the court to question the accused carefully to determine that he is fully informed and correctly understands these things, and that a perfunctory examination will not suffice. State v. Bursby, supra. Appellant, who had the burden of proving the invalidity of the sentences, State v. Warren, Mo.Sup., 344 S.W.2d 85, testified that he was never “informed by the Court or by anyone acting on behalf of the Court, as to the range of punishment for the charges of statutory rape and sodomy” and that he did not “exactly” know the maximum sentence possible. (Our italics.) He did not establish, however, that he was not informed by others or that he did not know that he could get as much as five years on each charge. He must have known that he could get at least three years for rape and sodomy, because he had received three-year sentences for these crimes in 1950. In Bursby the accused was sentenced without the benefit of counsel, whereas appellant Good had counsel of his own choosing at his side. Considering the experience of appellant in sex crimes, his previous convictions and incarceration in the penitentiary on charges of rape and sodomy, and the fact that he was represented by and had advised with his own lawyer, who knew the range of punishment, we conclude that there was sufficient evidence upon which to base a finding that this appellant knew and understood that he could receive up to five years on each of the three charges, and that the sentences could be made to run consecutively, and we so find.

Was appellant proceeding under some misapprehension or mistake in entering the pleas? The law is clear that if an accused is misled or induced to plead guilty by mistake, misapprehension, persuasion, or the holding out of hopes which prove to be false or illfounded, he should be permitted to withdraw his plea. State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2; State v. Williams, supra, 391 S.W.2d, l.c. 234, 235. Obviously, when appellant went before the court for sentencing he thought that he would receive three two-year sentences and that they would run concurrently. Clearly, appellant entertained an ill-founded hope that he would receive the lesser sentence. Instead, as it turned out, he received three five-year sentences to run consecutively. Nevertheless, we find no mistake, misapprehension or holding out of false hopes in the legal sense requiring the trial court to permit the withdrawal of the pleas of guilty or requiring this Court to set aside the sentences and judgments.

Before sentence was passed accused and his attorney were not only given a reasonable opportunity to know and realize that they were mistaken in their belief that accused would receive a two-year sentence and that their belief was a misapprehension and a false and ill-founded hope, but also were expressly warned by the sentencing judge that a two-year sentence would not be meted out. This information was brought home to accused and his counsel in ample time to object and request leave to withdraw the pleas of guilty, but they did not object or make such request. After the pleas were entered and the judge had satisfied himself that accused knew what he was charged with and that the guilty pleas were voluntarily entered, the judge next satisfied himself that no promises had been made to the accused to induce the pleas. For a second time he informed accused that the court was not bound to take the recommendation of the state. Then, referring to the first case, the judge positively stated “I will not take the recommendation of the State.” The judge, having informed accused only a moment before this that accused was entitled to a trial by jury if he wished, asked if there was any reason why he should not be sentenced at that time. Instead of asking that the plea be withdrawn, which both accused and counsel might well have considered advisable in view of the announced attitude of the judge, accused’s counsel stated that there was none, thereby indicating that accused was ready to submit to sentencing with the full knowledge that he would not receive a two-year sentence. A five-year sentence was imposed. Neither accused nor his counsel objected or requested remedial or dilatory action. The judge then granted allocution on the second case and, accused himself stating that there was no legal reason why sentence should not be pronounced, the judge issued a second five-year sentence and decreed that the second run consecutively to the first for a total of ten years. The accused and his counsel still stood silent. The judge then granted allocution on the third case and, no legal reason to the contrary having been advanced, issued a third five-year sentence, to run consecutively to the first two, for a total of fifteen years. From the transcript it may be inferred that accused could hardly believe his ears, but even then neither he nor his counsel objected, asked the court to reconsider, or made any affirmative effort whatever to rectify the situation. Not until later in the day, perhaps that afternoon, did Mr. Curtis ask the court to set aside the sentences.

Appellant was not entitled as a matter of right to withdraw his pleas of guilty. Whether a withdrawal of the pleas should have been allowed was a matter resting in the sound discretion of the trial judge. Appellant, citing State v. Kellar, 332 Mo. 62, 55 S.W.2d 969; State v. Jonagan, 311 Mo. 540, 278 S.W. 775; State v. Hamilton, 337 Mo. 460, 85 S.W.2d 35; State v. Sublett, 318 Mo. 1142, 4 S.W.2d 463, concedes that the trial court’s decision on the question will not be overthrown except for an abuse of judicial discretion.

We find no abuse of discretion. A mature, experienced defendant, accompanied by an attorney of his own choosing, appeared before a judge who thoroughly, patiently and pointedly disabused accused and his counsel of their preconceived ideas with reference to the length of term of imprisonment he hoped to receive; in effect offered accused a jury trial even after pleas of guilty were entered, and positively stated that he would not assess the recommended punishment. With full knowledge that the judge would not give him three concurrent two-year sentences accused submitted to allocution and sentence three times without objection and without acting upon the judge’s suggestion that he was entitled to trial by jury if he saw fit to have a jury trial. In these circumstances accused may not now complain that the judge did not follow the state’s recommendation but assessed a more severe penalty than he had hoped for and anticipated at the time he entered the courtroom for sentencing. See State v. Freedman, Mo.Sup., 282 S.W.2d 576, 581 [3],

There was no duty on the court, as claimed, to “tell defendant what the judge [had] in mind” as to the sentence he intended to impose. State v. Williams, supra, 361 S.W.2d, l.c. 774 [1]; State v. Bursby, supra, 395 S.W.2d, l.c. 159 [4].

The judgment is affirmed.

WELBORN, C., not sitting.

HIGGINS, C., concurs.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    William N. POLLARD, Appellant, v. H. R. SWENSON, Warden, Missouri State Penitentiary, Respondent.
    No. 51818.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.
    Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    No attorney for appellant.
   STOCKARD, Commissioner.

Plaintiff filed in the Circuit Court of Cole County what he labeled “Petition for Declaratory Judgment.” Reference is also made in the petition to an application for Quo Warranto. The petition is inartfully drawn and contains allegations in the form of conclusions and which are argumentative in nature. However, when we glean out the extraneous matter, plaintiff has alleged, in substance, that he is a prisoner in the Missouri State Penitentiary who seeks to institute a post-conviction legal proceeding to challenge the validity of the judgment pursuant to which he is being held in confinement; that he has arranged to have sent to him photostatic copies of certain army medical records which he asserts are necessary and material to his application for relief; and that the warden and assistant warden of the penitentiary have taken possession of the copies of those records and refuse to permit plaintiff to copy them or use them in connection with his contemplated legal proceeding. The prayer was that the court order that plaintiff’s “mental documents and records to be properly restored and delivered to [him] so that he may proceed to petition for relief of grievances from his prison imprisonment.” Attached to the petition was an “Application for Subpoena Duces Tecum” in which plaintiff requested that the warden of the penitentiary be required to produce from his office “all mental records and documents” concerning plaintiff for inspection by the court.

No responsive pleading was filed, but the trial court entered its order as follows: “Applicaton for subpoena duces tecum, for declaratory judgment and for Quo War-ranto denied.” Thereafter, plaintiff timely filed his notice of appeal to this court.

We are immediately faced with the question of our jurisdiction of this appeal. The named defendant is “H. R. Swenson, Warden, Missouri State Penitentiary.” If this court has jurisdiction it is only on the basis that this is a civil case where a “state officer as such is a party” within the meaning of Article V, Section 3, Constitution of Missouri, V.A.M.S.

This court recently held that “A 'state officer’ within the meaning of Article V, Section 3, of the constitution V.A.M.S. regulating the jurisdiction of this Court must exercise a portion of the sovereign power of government independently and without control of a superior power other than the law.” Shepherd v. Department of Revenue, Mo., 370 S.W.2d 381, 382. See also Mossman v. St. Joseph Lead Co., Mo.App., 254 S.W.2d 241, and compare State ex rel. Webb v. Pigg, 363 Mo. 133, 249 S.W.2d 435.

Section 216.010 (all statutory references are to RSMo 1959, V.A.M.S.) creates “as a department of state government 'A Department of Corrections’ ” which by Section 216.020(3) is “To have control and jurisdiction over all intermediate and adult correctional and penal institutions and activities in this state * * * including the state penitentiary, * * *.” The chief administrative officer of the Department of Corrections is a director who has general supervision, management and control of the institutions within the department, and who is authorized to make such rules and regulations, not in conflict with the laws of this state, as he may deem proper for the government and management of the institutions under the jurisdiction of the department. Section 216.115. Within the Department of Corrections there are seven divisions, one of which is the division of administration, Section 216.010, which has general supervision over the custody, care and discipline of all inmates and the management and maintenance of all institutions under the jurisdiction of the department. Section 216.215. The chief administrative officer of the division of administration is the director of the Department of Corrections. Section 216.220. The director is authorized to appoint “for the state penitentiary, a warden, * * * who shall be the chief administrative officer” of that institution. Section 216.225.

It thus appears that the warden of the penitentiary is under the direct supervision and control of the Department of Corrections, of which the chief administrative officer is the director of the Department of Corrections. Therefore, the warden does not exercise a portion of the sovereign power of government independently and without control of a superior power other than the law. He is employed by and under the supervision, direction and control of the director of the Department of Corrections. For this reason the warden of the Missouri State Penitentiary is not a “state officer” as that term is used in Article V, Section 3 of the Constitution. Since no other basis for appellate jurisdiction exists, this court has no jurisdiction of this appeal.

The case is transferred to the Kansas City Court of Appeals.

BARRETT, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM:

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

All of the Judges concur.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Charles H. WHITE, Appellant.
    No. 51631.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, Gordian S. Benes, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   DONNELLY, Judge.

Defendant, Charles Herbert White, was convicted of unlawful possession of a narcotic drug under § 195.020 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Jackson County, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280 RSMo (as amended Laws 1959, S.B. 117, § 1), was assessed at imprisonment for a term of three years.

The jury returned its verdict on March 31, 1965. On said date, defendant was given leave by the trial court to file his Motion for New Trial on or before April 29, 1965. He filed his Motion for New Trial on May 12, 1965. The Motion for New Trial was overruled and judgment entered on June 10, 1965. Defendant, by leave of this Court, filed his Notice of Appeal on July 27, 1965. Defendant was represented throughout by an attorney of his own selection.

Supreme Court Rule 27.20(a), V.A.M.R., reads as follows:

“(a) A motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor. Such motion shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion.”

The Motion for New Trial, filed May 12, 1965, thirteen days aftr April 29, 1965, is a nullity and we are precluded from consideration of any matters required to be preserved therein. State v. Hamilton, Mo.Sup., 391 S.W.2d 872.

We have examined the transcript and find nothing to cause us to invoke Supreme Court Rule 27.20(c), V.A.M.R.

We have also examined the parts of the record designated in Supreme Court Rule 28.02, V.A.M.R., and find them to be free from error.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Elvin Wayne ADAMS, Appellant.
    No. 51512.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.
    Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    Eivin Wayne Adams pro se.
   STOCKARD, Commissioner.

Defendant has appealed from the order of the trial court, entered without a hearing, denying his motion filed pursuant to Criminal Rule 27.26, V.A.M.R., to vacate a judgment entered in a criminal proceeding wherein defendant was charged as an habitual criminal with the offense of rape and received a sentence of life imprisonment. Upon appeal the judgment was affirmed by this court. State v. Adams, Mo., 380 S.W.2d 362.

Defendant’s motion is inartfully drawn. It consists mostly of allegations of conclusions, and a purported analysis of several federal cases. By sifting therefrom the extraneous material we find that defendant asserts that the challenged judgment should be declared void because he was denied due process of law in that (1) the trial court admitted into evidence over his objection an involuntary confession obtained by coercion, and (2) he was not furnished counsel during interrogation by the police.

Defendant alleges that “except for dozing in a chair in the squadroom [he] had no sleep during the time taken to force him to sign the police constructed confession, no food, not arraigned before any judicial officer, and certainly not advised as to his right to counsel or the right not to speak, except in so far as these advices are in the opening paragraph of the police constructed confession.” He later states in the motion that “I was beat and made to sign the untruthful constructed document presented in court.”

The contention that the written confession admitted into evidence was involuntary because obtained by coercion was one of the issues presented by defendant on his appeal. See State v. Adams, supra, 380 S.W.2d at p. 368. This court there pointed out that at the trial the evidence for and against defendant’s contention was first heard by the court out of the presence of the jury and the court ruled that it was admissible in evidence. The evidence for and against defendant’s contention was then presented before the jury, and the question of the evidentiary worth of the confession was submitted to the jury as follows: “The Court instructs the Jury that any oral or written statement made by any defendant, even though it should contain matters that tend to prove his guilt, is admissible in evidence against the defendant and is to be given such probative value as evidence as you believe it deserves, if you find it was voluntarily given.” There then followed a proper definition of the term “voluntarily.” See State v. Washington, Mo., 399 S.W.2d 109, at pp. 113-114 where this procedure was held to comply with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. The effect of defendant’s contention in his motion is that he wants a second hearing on the precise issue adjudicated at his trial and affirmed on appeal, but in view of the previous adjudication “he is thereby precluded from litigating the questions further by means of a motion to vacate and set aside under Rule 27.26 filed in the trial court.” State v. Thompson, Mo., 324 S.W.2d 133, 139. See also State v. Morton, Mo., 349 S.W.2d 914; State v. Johnstone, Mo., 350 S.W.2d 774, 777, certiorari denied, 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280; State v. Mallory, Mo., 349 S.W.2d 916; State v. Worley, Mo., 371 S.W.2d 221. The trial court was authorized to, and properly did, overrule without a hearing this contention contained in the motion.

Defendant attempts to bring himself within the scope of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, which held, generally speaking, that admissions elicited from a defendant during a period of unlawful detainment by police are inadmissible. There are no allegations of fact in defendant’s motion which if true would show an illegal arrest or unlawful detainment. The only allegation is that he was “not arraigned before any judicial officer.” The transcript shows that defendant was properly arraigned and entered a plea of not guilty. This is a matter that was reviewed on appeal pursuant to Criminal Rule 28.02, V.A.M.R. The allegation, standing alone as it does, that he had not been arraigned at the time of interrogation does not authorize a finding of unlawful detainer by the police. Defendant also cites Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. There is no allegation in the motion that defendant requested an opportunity to obtain counsel, or that he had counsel and was denied the opportunity to confer with him. Neither is there an allegation that he wanted counsel at or before the interrogation by the police. The Escobedo case is not applicable. See State v. Spica, Mo., 389 S.W.2d 35, 56. “We have never held that the lack of an attorney when a defendant is interrogated and a statement is taken renders the confession invalid per se.” State v. Davis, Mo., 400 S.W.2d 141, 149. See also, State v. Donnell, Mo., 387 S.W.2d 508, 511. Defendant has alleged no facts which, if true, would authorize a finding that in connection with his interrogation by the police there occurred an infringement of any constitutional right. The trial court properly ruled, without a hearing, that there was no merit to the contention that defendant was not furnished counsel during interrogation by the police.

We note, in addition to the above, that defendant’s motion contains a statement in the form of a conclusion that he was not advised of his “right not to speak,” but he admits that the written confession signed by him contained a statement wherein he acknowledged that he was so advised. There is nothing in the motion which would authorize a finding that this statement in the written confession was not correct.

The judgment is affirmed.

BARRETT, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Margaret KESTERSON (Hembree), Appellant.
    No. 51747.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Harry D. Pener, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Pohlman & Costello, William H. Costello, Kansas City, for appellant.
   FINCH, Judge.

Defendant, charged under the Habitual Criminal Statute, § 556.280 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise indicated), was found guilty of stealing over $50 by means of deceit, § 560.156, and was sentenced to imprisonment for ten years with credit given for jail time. Defendant, after an unavailing motion for new trial, appealed, claiming insufficiency of the information to charge a crime, error in the admission of evidence, and insufficiency of the verdict.

The amended information on which defendant was tried alleged various aliases and prior convictions and then stated as follows: “ * * * and that thereafter, between December 22, 1964, and January 18, 1965, at the County of Jackson and State of Missouri, she did then and there unlawfully, feloniously, and intentionally steal, by means of deceit, certain property, to wit, lawful money of the United States of the value of Two Thousand Five Hundred Sixty-four and no/100 ($2564), the property of Jennie L. Walker against the peace and dignity of the State.”

In order to consider defendant’s attack on the sufficiency of the information, we deem it necessary to summarize the evidence offered on behalf of the State. It was as follows: Defendant inserted an ad in the “Situations Wanted” section of the Kansas City Star, seeking a place as companion and light housekeeper for an elderly person. Mrs. Jennie Walker, aged 74, answered the ad and conversations between her and defendant resulted in an arrangement whereby defendant was to work for Mrs. Walker as a light housekeeper. At their first meeting defendant told Mrs. Walker that her husband, Robert O. Kesterson, had died some months before and that his estate was pending in the Probate Court at Sedalia. Defendant told Mrs. Walker that she was short of money and would need money until the probate proceeding was settled, but after that time she would have plenty of money to care for both of them. The first conversation was in December 1964 and the estimated time given by defendant as to when the estate would be closed was March 1, 1965. Defendant stated she would move in with Mrs. Walker as soon as the estate was settled but meanwhile she brought clothes and left them at the house. Various meetings and conversations between Mrs. Walker and defendant occurred in December 1964 and in January and February 1965. For the purposes of this appeal, it is not necessary to detail all of them. It can be said, in summary, that defendant in those conversations represented that the estate was substantial and that it included farm machinery, a liquor store at Sedalia, a farm in Morgan County, Missouri, a farm in Iowa, some property at 7208 Santa Fe, in Johnson County, Kansas, and various securities, including a mortgage on a motel at Loveland, Colorado. At various times defendant stated to Mrs. Walker that she was short of money, and Mrs. Walker on those occasions loaned or advanced money to defendant. The first time it was for a trip to a funeral in Iowa, although the amount advanced in that instance was not included in the amount charged in the information. Some funds were advanced when the défendant advised Mrs. Walker that she had arranged with the Probate Judge at Sedalia to give money from the estate as gifts and that she was going to make gifts out of the estate to Mrs. Walker, but needed cash, which she did not have, in order to pay taxes thereon. On one occasion the money was to cover closing costs and insurance on the property in Johnson .County, Kansas, which she was going to take over as a place where they would live, pursuant to authorization which she said the Probate Judge had given. Other money was for trips to Loveland, Colorado, and for use in connection with allegedly working out an arrangement whereby she would receive a deed to the motel property at Loveland, Colorado. A one-half interest therein, according to defendant, was to be conveyed to Mrs. Walker. Photographs of the motel, plus a real estate contract, were exhibited to Mrs. Walker. When she asked defendant why her name was not on the contract, defendant replied that this would be done by the Probate Judge when the estate was settled. Mrs. Walker kept a memorandum of the dates and amounts which she advanced to the defendant, and this was introduced in evidence. In addition, the State offered as an exhibit an executed copy of a will of the defendant which she had given to Mrs. Walker under which she proposed to leave the residue of her estate to Mrs. Walker. A total of $2564, not including the amount for the trip to Iowa, was given by Mrs. Walker to defendant on various occasions in December 1964 and January 1965. There were approximately ten separate instances in which money was advanced, the amounts thereof ranging from $80 to $1200. The State’s evidence disclosed that there was no estate of Robert O. Kesterson in the Probate Court at Sedalia, that the Probate Judge there did not know defendant, that defendant had worked for one R. O. Kester-son at Versailles, Missouri, but that she was not married to him and that he was still living. Kesterson, incidentally, did not own any land in Morgan or Pettis Counties. The State’s evidence also disclosed that there is only one 7200 block on a Santa Fe street in Johnson County, Kansas. It is located near or in Overland Park. Defendant had no interest in property located at that address and the recorder of that county found nothing in connection with Robert O. Kesterson, R. O. Kesterson or defendant under any of her aliases.

The jury returned a verdict finding “defendant Margaret Ryan, Margaret Kes-terson, alias Louise Campbell, guilty of Stealing Over $50 by Means of Deceit as charged.” The court, after hearing evidence as to prior convictions, made the necessary findings with reference thereto and fixed defendant’s punishment.

The pertinent language of § 560.156, the section under which defendant was charged, is contained in paragraph 2 of the section and reads as follows: “It shall be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit.”

It is obvious that the amended information charged defendant essentially in the language of the statute. She was charged with intentionally stealing by deceit money in the amount of $2564 from Jennie L. Walker between specified dates. The State contends that since the information against defendant does conform substantially to the language of § 560.156, it is sufficient. Generally, it is permissible and sufficient for an indictment or information to charge the offense in the language of the statute alleged to be violated if the statute sets forth all the constituent elements of the offense. State v. Bersch, 276 Mo. 397, 207 S.W. 809; State v. Futrell, 329 Mo. 961, 46 S.W.2d 588; State v. Varsalona, Mo., 309 S,W.2d 636; 27 Am.Jur., Indictments and Informations, §§ 100 and 101, pp. 659-660. However, there are qualifications of this rule. This has been expressed by this court in these words: “Such is not the case if the statute creating the offense uses generic terms in defining the of-fense and does not individuate the offense with such particularity as to notify the defendant of what he or she is to defend against.” State v. Fenner, Mo., 358 S.W.2d 867, 870; State v. Varsalona, supra, 309 S.W.2d l. c. 642. See also 27 Am.Jur., Indictments and Informations, § 103, p. 662, where it is stated: “As the courts have pointed out, the words of the statute may be sufficient to describe or legally characterize the offense denounced, and yet be wholly insufficient to inform the accused of the specific offense of which he is accused, so as to enable him to prepare his defense or plead his conviction or acquittal as a bar to further prosecution for the same offense, as where the statute characterizes the offense in mere general or generic terms, or does not sufficiently define the crime or set forth all of its essential elements.”

Section 560.156 is a new statute enacted in 1955. It replaced numerous statutes repealed at that time, one of which was § 561.370 which had covered obtaining money by false pretenses. The new statute was an attempt to deal with all forms of stealing, including false pretenses, in one statute. Since § 560.156 is a relatively new statute, the number of reported cases thereunder involving stealing by deceit is small. No case was cited by counsel, nor have we found any, which involved and considered the sufficiency of an information or indictment framed solely in the language of the statute, as is the one in this case. The cases which we have found involve informations containing more detailed allegations as to what happened and with what defendant is charged.

In State v. Perkins, Mo., 380 S.W.2d 433, cited and relied on by the State, the court considered a contention that the trial court should have sustained a motion for a bill of particulars with reference to an information charging the defendant therein with stealing by deceit under § 560.156. This court held that it was not error to overrule the motion for a bill of particulars, but in that connection had this to say with reference to the content of the information, 380 S.W.2d l. c. 435: “ * * * the information charges that Lola ‘in the City of St. Louis, between June 20, 1959 and the 5th day of February 196.1, did unlawfully, feloniously and intentionally steal, take and carry away $79,661.00, the property of Hollybrook Land Company in the care and custody of Robert N. Amacker, ‘by means of certain false pretenses, representations and deceit, to wit’ that Lola falsely represented to Amacker that she ‘was the executrix under the will of one Magnolia J. Ward (Pittman) deceased; that there was certain real and personal property which were assets in the estate * * * that the value of the assets in said estate was greatly in excess of the amount of the monies of the Holly-brook Land Company * * * so obtained as aforesaid from Robert Amacker, and that the advancement of said monies by the said Robert Amacker to said Lola Lorene Perkins * * * would enable her to close and settle the aforesaid estate, and that she would then so close and settle said estate and would, out of the assets of said estate’ repay the sums advanced by Amacker, that said representations and pretenses were known to Lola to be false and untrue and were relied on by Amacker with the result that Lola got and stole $79,661.” In connection with its ruling that the information was sufficient, the court said, 380 S.W.2d 1. c. 435: “It is neither necessary nor desirable that informations under the revised statute be reduced to a rigid formula; it is sufficient to say that this information plainly describes an offense defined in the statute and, as will appear from a recital of the facts, concisely covers the conduct relied on as constituting a theft by deceit.” Obviously, that information advised defendant specifically as to the series of representations charged to constitute the deceit or false representations. No such recital of alleged false representations appears in the amended information against defendant herein. The Perkins case is not authority for the sufficiency of the information in this case.

In State v. Fenner, supra, the information alleged that defendant intentionally stole by deceit the sum of $2000 from the Columbia Savings Bank, but went on to recite that defendant had obtained a loan for $2000 from the bank by fraudulently representing ownership of certain property which was represented to be free and clear of liens, whereas some of the property was not owned by defendant and some had been previously mortgaged. The case actually was decided on the insufficiency of the evidence to support a verdict of guilty under the statute, but Judge Dalton did discuss the information and the statute under which it was filed. After pointing out that some statutes are in generic terms which require more than a mere recital of statutory language in an indictment or information thereunder, he said, 358 S.W.2d 1. c. 870: “We find this statute to be of the latter class. It is vitally important that every man accused of a crime should have a reasonable opportunity to know what he is charged with, and that he not be called upon to meet evidence at the trial which he could not have anticipated from the charge filed against him.” This statement was dictum, but it does say that an information under § 560.156 which charges stealing by deceit requires more than a mere recital that defendant stole X dollars from Y at a specified time by deceit. Even if it had held the information in Fenner sufficient, such decision would not be decisive of this case, since it gave specific information as to the transaction on which defendant was charged.

We also should note that informations under the predecessor false pretenses statute, § 561.370, were required to contain a recital of the representations claimed to be false. State v. Ruwwe, Mo., 242 S.W. 936.

Not only does defendant claim that the information did not allege what the deceit was, but she also complains that it did not recite that the victim relied thereon. Such a recital was necessary in informations under the predecessor statute, § 561.-370, involving false representations. State v. Norman, Mo., 232 S.W. 452. Such allegations also are required under the so-called confidence game statute, § 561.450. State v. Stegall, Mo., 353 S.W.2d 656; State v. Cunningham, Mo., 380 S.W.2d 401. The reasoning which required that the state allege in the information and prove that the victim relied on the misrepresentation in cases under §§ 561.450 and 561.370 also is applicable to charges of stealing by deceit under § 560.156. Unless the victim does rely on the conduct which constitutes the deceit, the stealing is not accomplished by deceit and the offense is not proved.

We hold that § 560.156, in describing the offense of theft by deceit, does use generic terms and that it is necessary that indictments or informations thereunder recite sufficiently the conduct constituting a theft by deceit with which a defendant is charged as to notify him as to the charge against which he must defend himself and likewise be sufficient to bar further prosecution for the same offense. We also hold that the information must charge that the victim relied on the misrepresentations with which defendant is charged. The information herein did neither.

There is one additional question we should consider. The State’s brief suggests in its argument that the information should not be found insufficient since defendant did not attack it before trial by a motion to dismiss or a motion for a bill of particulars. The first attack thereon came in a motion to quash the information filed at the close of the State’s case. No authorities are cited. We presume that reference to Criminal Rule 24.03, Vernon’s Annotated Missouri Rules, is intended. That rule provides that the court may direct a bill of particulars where the information alleges the essential facts constituting the offense but fails to inform defendant of the particulars sufficiently to prepare his defense. A time table for such a motion is prescribed. It is true that failure of the indictment or information to give all desired details may be waived by failure to request a bill of particulars. State v. Bright, Mo., 269 S.W.2d 615; State v. Haynes, Mo., 329 S.W.2d 640; City of St. Louis v. Capitol Vending Co., Mo.App., 374 S.W.2d 519; 27 Am.Jur., Indictments and Informations, § 187, p. 733. However, when the omissions in the indictment or information are of such fundamental character as to make it wholly insufficient and invalid, as we have held the information herein to be, such insufficiency is not waived by failure to raise the question at the early stages. 27 Am.Jur., Indictments and Informations, § 187, p. 731. Under the circumstances, the motion to quash the information filed after the close of the State’s case was sufficient to raise and preserve the question.

In view of our conclusion that the information was fatally defective, there is no occasion to review other assignments of error. The judgment is reversed and the cause remanded.

All of the Judges concur.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Sammy FORD, Appellant.
    No. 51877.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Richard C. Ashby, Asst. Atty. Gen., Jefferson City, for respondent.
    Sammy Ford, in pro. per.
   HOLMAN, Presiding Judge.

Defendant has appealed from the order of the trial court overruling his motion to vacate filed under S.Ct. Rule 27.26, V.A.M. R.

On September 18, 1964, defendant entered a plea of guilty to a charge of burglary in the second degree and was sentenced to imprisonment in the penitentiary for a term of three years. His sole contention on this appeal is that the judgment should have been set aside because the information was fatally defective in that it failed to allege ownership of the burglarized building. In that respect the information alleged that the defendant did “break and enter into the Crossroads Cafe, a building or enclosure in which are kept goods *

An examination of the cases will disclose that Missouri has always followed the majority rule which requires that “an indictment or information for burglary, whether at common law or under a statute, must allege the ownership of the building or dwelling entered.” Annotation, 169 A.L.R. 887. State v. Wright, 339 Mo. 41, 95 S.W.2d 1159; State v. Peterson, Mo.Sup., 305 S.W.2d 695. However, the strict rule originally followed has been modified in two respects. It is no longer required that the legal status of the alleged owner be averred, i. e., whether a corporation, partnership, or individual. State v. Zammar, Mo.Sup., 305 S.W.2d 441 [1], And it is usually not necessary to allege who owns the legal title to the building, but it is sufficient to allege the occupancy or possession of the premises at the time they were burglarized. State v. Peterson, supra; State v. Jeffords, Mo.Sup., 64 S.W.2d 241.

The reasons for requiring an allegation of ownership of the building are said to be: “(1) For the purpose of showing that the house alleged to have been burglarized was not the dwelling of the accused; and (2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense.” State v. Carey, 318 Mo. 813, 1 S.W.2d 143, 146. Courts that have adopted the minority view that an allegation of ownership is unnecessary have apparently done so on the theory that it is only necessary to identify the building. See State v. Moreno, 64 Ariz. 226, 168 P.2d 237, and People v. Lamarr, 51 Cal.App.2d 24, 124 P.2d 77.

In 12 C.J.S. Burglary § 38b.(1), p. 699, we note the following: “In alleging ownership no particular form of words is necessary. It is sufficient to describe the premises as ‘belonging to’ a person or a corporation named, or as the dwelling house, shop, office, building, etc., ‘of’ a certain person, or as ‘under the control of’ a designated person, or as ‘the property of’ a certain person. In some states it is sufficient to allege that the premises were ‘occupied’ by a person named, and allegations showing possession rightful as against the burglar are sufficient * * We have heretofore held the following allegations of ownership or possession to be sufficient: “A certain store building located in Mar-viell * * * being used as a store, and operated by Mr. and Mrs. John Sappington,” State v. Jeffords, supra, 64 S.W.2d 241, 242; “a certain store, shop, or building of the Odell’s, Inc.,” State v. Carey, supra, 1 S.W.2d 143; “the garage building of the W. L. Bond Motor Company,” State v. Stubblefield, Mo.Sup., 248 S.W.2d 665, 666; “the A. & N. Hardware Store, the property of Lloyd Norris and Vivion Anderson,” State v. Zammar, supra, 305 S.W.2d 441, 442; “a certain building used by Rollie Pettijohn, d/b/a Pettijohn Service Station,” State v. Peterson, supra, 305 S.W.2d 695, 698; “the Stratton Produce Company building, a store building used to keep goods * * *,” State v. Eaton, Mo.Sup., 394 S.W.2d 402, 403; “a certain building, to-wit, the store known as Ritter Hardware, belonging to Ritter Hardware Company, Inc.,” State v. Mallory, Mo.Sup., 336 S.W.2d 383, 385; and a building, “the property of Joe Cunningham,” State v. Stuver, Mo.Sup., 360 S.W.2d 89, 91.

We have, however, held informations to be fatally defective because of a failure to allege ownership where the following language was used: “a certain building, No. 806 Independence avenue,” State v. James, 194 Mo. 268, 92 S.W. 679, 680; “a building located at 217 West Ninth street, in Kansas City, Jackson county, Mo., and known as the Savoy Pharmacy,” State v. Simpson, 317 Mo. 398, 295 S.W. 739; and “a store building known as House’s hardware and dry goods store, located at 4817 Prospect avenue, Kansas City, Missouri,” State v. Schultz, Mo.Sup., 295 S.W. 535, 536. The holdings in those cases are explained and approved in State v. Carson, 323 Mo. 46, 18 S.W.2d 457 [2].

We have concluded that the information in the case under review is fatally defective because it wholly fails to contain any allegation concerning the ownership of the building involved. The allegation that defendant burglarized “the Crossroads Cafe, Cameron, Missouri,” was sufficient to identify the building, but it does not constitute an allegation of ownership or possession in some individual, partnership, or corporation. The allegation here is precisely the same as that in the Schultz and Simpson cases, supra. We think the decisions in those cases are controlling.

The order appealed from is reversed and the cause is remanded with directions to vacate and set aside the judgment herein. Thereafter, the court may permit such further action in the premises as it may deem proper.

Reversed and remanded.

All concur.


text:
    STATE of Missouri, Respondent, v. Norman Cornelius FLOYD, Appellant.
    No. 51689.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    No attorney for appellant.
   DONNELLY, Judge.

Defendant Norman Cornelius Floyd entered a plea of guilty to a charge of first degree murder in the Circuit Court of the City of St. Louis and was sentenced to imprisonment in the penitentiary for the remainder of his natural life. Sections 559.010 and 559.030 RSMo 1959, V.A.M.S.

On March 16, 1965, defendant filed in the Circuit Court of the City of St. Louis his Motion to Vacate Sentence and Judgment under Supreme Court Rule 27.26, V.A.M.R., and a Motion for Reduction of Punishment. Defendant in his motions asserts that the judgment and sentence of the trial court are unconstitutional and without due process of law in that: (1) The indictment is “no good”; (2) a confession was taken from him by force and under coercion and was involuntarily made, and (3) the “punishment assessed is greater than under the circumstances of the case ought to be inflicted.”

The Circuit Court of the City of St. Louis considered the motions on March 23, 1965, and overruled them without an evi-dentiary hearing. Defendant perfected an appeal to this Court.

In State v. King, Mo.Sup., 380 S.W.2d 370, 373, the applicable law under Rule 27.26, V.A.M.R., is stated as follows: “A motion filed under this rule to vacate a judgment of conviction is not a step in a criminal proceeding against the defendant, but is, like habeas corpus, a means of testing the validity of his detention after conviction. Under this proceeding a collateral inquiry may be made as to the validity of the judgment under which defendant is held. The proceeding is governed by Court rules applicable to civil proceedings. State v. Warren, Mo.Sup., 344 S.W.2d 88, 90 [2]; State v. Thompson, Mo.Sup., 324 S.W.2d 133, 135; State v. Johnstone, Mo.Sup., 350 S.W.2d 774, 777 [3-6], certiorari denied, 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280. If the motion presents no material issues of fact, or if the issues presented may be determined by the record and files in the original case, the Court may summarily rule the motion, since the Court may take judicial notice of its own records and the prior proceedings in the case. Also, if only issues of law are presented the Court may summarily rule the motion. If material issues of fact not previously ruled are presented, a hearing must be had and the Court must ‘make findings of fact and conclusions of law with respect thereto.’ State v. Pickle and Proffit, Mo.Sup., 376 S.W.2d 181 and State v. Herron, Mo.Sup., 376 S.W.2d 192.”

The indictment charges in part that on the 17th day of June 1962, at the City of St. Louis, defendant “feloniously, wilfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did make an assault upon one LOUISE LOGAN, and the said NORMAN CORNELIUS FLOYD with his fists, and then and there feloniously, wilfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did strike, hit and beat with great force and violence at and upon the body of the said LOUISE LOGAN thereby feloniously inflicting a mortal wound, from which said Mortal wound LOUISE LOGAN did die on the 28th day of June 1962; * * *.”

The indictment sets out the method and means by which the death of deceased was effected by defendant and contains all the necessary elements to charge murder in the first degree. Section 559.010 RSMo 1959, V.A.M.S.; State v. Finn, Mo.Sup., 243 S.W.2d 67, 70. The crime of murder in the first degree may be committed with the fists. State v. Haynes, Mo.Sup., 329 S.W.2d 640; State v. Beard, 334 Mo. 909, 68 S.W.2d 698; State v. Hyland, 144 Mo. 302, 46 S.W. 195. The indictment is sufficient in form and substance to charge the offense of murder in the first degree.

Defendant asserts that a confession taken from him by police officers, prior to the proceedings in the trial court, was involuntary and was obtained in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States and of the Constitution of the State of Missouri. The record shows that defendant, in the presence of his court-appointed attorney, entered a plea of guilty to the charge of first degree murder set forth in the indictment. “A voluntary plea of guilty is a solemn confesssion of the truth of the charge to which it is entered * * State v. Hadley, Mo.Sup., 249 S.W.2d 857, 860. Examination of the record' shows that the only reference to defendant’s prior confession was made by the Assistant Circuit Attorney when the plea of guilty was taken and sentence imposed by the trial court. The mention of this confession could have affected only the extent of punishment assessed by the trial court. Defendant’s punishment was assessed at imprisonment for the remainder of his natural life. This was the minimum punishment which could have been assessed for murder in the first degree. Section 559.030 RSMo 1959, V.A.M.S.; State v. Tillett, Mo.Sup., 233 S.W.2d 690. For this reason, also, the trial court did not err in refusing defendant’s request for a reduction of sentence.

The trial court properly overruled defendant’s Motion to Vacate Sentence and Judgment without a hearing. The files and record show that defendant is entitled to no relief. State v. Kitchin, Mo.Sup., 300 S.W.2d 420; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804; State v. Small, Mo.Sup., 386 S.W.2d 379.

The order and judgment are affirmed.

All concur.