author: EAGER, Judge.

text:
    CITY OF BOURBON, a Municipal Corporation, Respondent, v. Frank MILLER and Catherine Miller, his wife et al., Appellants, Eugene E. Johnson and Geneva E. Johnson, his wife et al., Defendants.
    No. 52957.
    Supreme Court of Missouri, In Banc.
    Nov. 13, 1967.

      G. C. Beckham, Steelville, for respondent.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellants.
   EAGER, Judge.

The action involved here is a declaratory judgment suit seeking approval of. the annexation of two tracts of land to the plaintiff, a city of the fourth class. The trial court approved the annexation, and a majority of the defendants appealed. The defendants were chosen as representatives of the property owners in the two tracts and there is no contention that they do not fairly represent those classes. Plaintiff alleged that the annexation sought was “reasonable and necessary to the proper development of the City,” and that it was “in position to furnish * * * the normal municipal services of the City * * * as same may be needed, and within a reasonable length of time * * Defendants’ position is that the annexation is unreasonable, unnecessary and arbitrary, and that the city would not be able to furnish normal municipal services to the areas within a reasonable time. The proceedings were instituted by a resolution adopted by plaintiff’s Board of Aldermen on January 7, 1964. The appeal came first to this Court, but the cause was thereafter transferred to the Springfield Court of Appeals for lack of jurisdiction. An opinion was written and filed there on February 17, 1967; we ordered the case transferred here, upon application of the defendants. The opinion approved the annexation of one tract and disapproved the annexation of the other. We shall adopt, without quotations, parts of the statement of the facts made by the Court of Appeals, with or without changes.

Bourbon is located near the northeast corner of Crawford County, Missouri, 22 miles from the county seat at Steelville, and about 70 miles southwest of St. Louis. In 1960 it had a population of 779. In 1940 its population was 363, and in 1950, 543. At the trial a witness stated that the then population “will exceed 1,000.” The St. Louis-San Francisco Railroad runs through the approximate center of the town; old U. S. Highway 66 also runs through it and new Highway 66, now Interstate 44, skirts a part of the east side and runs through the north part. The main body of the city is more or less rectangular but an irregularly shaped area extends to the southwest for approximately a mile. The south part of this extension (containing approximately 45 acres) is described as “Siebenman Acreage Subdivision,” and was annexed to the City of Bourbon about one year before the present trial.

The city has no municipal electrical service and we assume, because of the lack of evidence, no municipal hospital or health services, no library, no park system, no garbage collection service, no zoning or planning ordinances, and no provision for the construction or maintenance of streets except, perhaps, from general funds or “gas tax” revenue. Nothing in the transcript indicates that annexation is required to secure uniform grade or alignment of streets in the areas sought, to maintain the peace, or make police ordinances effective. Likewise, the record indicates that the land proposed to be annexed is not needed by the city for water supply, sewer, or other utility purposes. Bonds for a municipal gas distribution system “have been voted,” but when, if ever, such a system might be put into operation depends on the “Illinois-Oklahoma Corporation” securing permission to build a gas line through Missouri along U. S. Highway 66. Annexation will have no effect upon the public school system, either for those presently residing in Bourbon or those living in the outlying community.

The assessed valuations of the “property” in the city were: $521,450 in 1955, $624,880 in 1960, and $851,420 in 1963. Revenue derived from a $1.70 levy amounted to $14,477.16 in 1963, and gross receipts were $19,074.78. The city anticipates ' a $200 monthly income from the state gasoline tax, and one dollar per month per sewer hookup, of which there were 85 when the testimony was heard. Revenue from its municipal water system was not shown. The city owes a $51,000 balance on its water revenue bonds and $65,000 on a sewer bond issue of $68,000. Three efforts to gain approval of the city’s $125,000 limit for sanitary sewer bonds were defeated; finally, the $68,000 issue was approved, and the first phase of the system was put into operation in October, 1962; the second and last phase followed in July, 1963. There are no plans for extending or enlarging the existing system. Of the 85 sewer connections in the city, 50 were residential ; the others were for businesses. About ten additional connections are possible and one witness estimated that only one-fourth of the present town is served by the sewers. More bonds would have to be voted before there could be any expansion of the present system and, from past results that would seem unlikely, particularly insofar as it might concern a large, new area.

The municipal waterworks consist of two wells equipped with pumps of 350 and 125 gallon per minute capacity. Ten exploratory drill holes “given” to the city by American Zinc, Lead and Smelting Company are said to be available for other water wells if necessary. This system also includes a 75,000 gallon water tower and a 30,000 gallon tower. Apparently water is available to all parts of the city and to anyone immediately outside the city limits willing to pay for extending the lines and paying for the service. The mayor testified that the present wells, pumps and tower facilities were adequate to supply water to the proposed annexed areas and that the city had a $10,000 surplus “in our water system” that could be used for expansion. Of the 361 connections existing in 1964, 35 to 40 were to customers outside the city limits.

An “organized volunteer fire department” serves the city and apparently all the neighboring community. There is a 20 cent city tax levy to support it. In addition to hoses, ladders, etc., the fire fighting equipment consists of a 1938 model pumper, a 1953 model pumper, and an 800 gallon water tank truck with portable pump acquired in 1963. The 1938 pumper and firehouse were purchased with donations made by people residing both within and without the city. It was not made clear whether those outside the city now contribute to the fire department.

Until a month before trial time the city’s police department consisted of one officer paid $250 a month. The second officer added to the force is paid $15 a month by the city; the balance of his salary is supplied by Bourbon businessmen. Both officers are deputy sheriffs and act in such capacity when performing official duties beyond the city boundaries. They may therefore be called outside of the city through the sheriff’s office.

The city’s claim for annexation is predicated entirely upon the alleged shortage of rental housing and residential building sites within its present limits; and it contends that this situation will worsen when an anticipated new iron mine beneath land adjacent to the town is constructed and commences operations, and also if and when a lake proposed nearby becomes a reality. No mention is made of any need for business or industrial lands. The evidence as to available rental housing is couched in two brief conclusions, to-wit: Mayor Rhodemeier — “It is utterly impossible to find a rental place at the present.” President of the Board of Aldermen — “At the present, it is pretty hard to rent.” Aside from a tract owned by a Mrs. Roosman and the Siebenman Acreage Subdivision, both inside the present city boundaries, the may- or contended there were no “suitable lots” available for building, whereas two aider-men estimated that there were 20 to 50 lots. The Roosman land consists of 12 to 15 un-platted acres which the owner refused to sell to the city for park purposes because “she didn’t need the money.” There is no definite testimony as to whether or not the owner would sell for housing purposes or for a subdivision. Siebenman Acreage Subdivision, annexed to the city a year before trial, contains 38 platted lots which represent about one-fifth of its total area. For some unknown reason an additional four platted lots were not annexed with the rest of that property, but these are now included in Tract No. 2. Only four houses have been built on the platted area of the subdivision. At least one-half of the un-platted portion of this subdivision is said to be suitable for residential building and this would provide space for an additional 100 to 150 lots. There was testimony that the owners of that subdivision would not sell a lot unless they were also permitted to build the house and sell it; they are nevertheless in the market to sell houses.

The American Zinc, Lead and Smelting Company has acquired surface and mineral rights to 1,130 acres just outside the corporate limits and also the mineral rights to 98 per cent of the land under the city itself. These acquisitions were made because exploratory drillings revealed the presence of an iron ore body of such magnitude as to permit mining in the area for an estimated 100 years. No surface operations will be undertaken within the city limits, present or proposed, and the ore under the city will be reached by drifts or tunneling. The commencement of construction was reported as probably coming “within the next few years,” with a suggestion “it might be ten or fifteen years.” The witness, a geologist, was not really in position to speak on that subject. It was stated that the initial construction period would consume about five years with an employment of approximately 100 persons; also, that the project in production would employ a total of up to 900 persons.

The lake referred to in the testimony has apparently long been contemplated; it would come from the construction of a dam on the Meramec River near Sullivan. Impounded water would come within about two miles of plaintiff city. This project is said to have been approved by the Army Corps of Engineers, but obviously it is only in the planning stage. The city might expect some advantages from the recreation area created by such a dam if in fact it ever materializes.

Of the two tracts involved in the present annexation attempt, Tract No. 1 consists of 25 acres which lie in a strip immediately southeast of Interstate 44 and northwest of and contiguous to the southwestern extension of the city, as above noted. There is no access to that highway except at the extreme north end of the tract. One home occupies a four-acre tract; another three-acre tract is unoccupied and described by its owner as a “weed patch” on which he sometimes operates a sawmill. The remaining 18 acres in this parcel consist of two platted subdivisions which have been divided into 36 lots. Houses have been built on 14 to 21 of the lots (with no explanation of the ambiguity) ; substantially all of these have city water and receive fire protection.

Tract No. 2 consists of 130 acres more or less; it does not touch Tract No. 1. It lies generally along the southeasterly side of the southwest extension of the city’s boundaries (as previously described); its northwesterly line is most irregular; it extends on to the southwest ending in a sharp point. The total northerly-southerly length of the tract is about one and one-half miles; Old Highway 66 runs along the westerly side of the tract (and along the Frisco) for about one-third of its length, but both to the north and south of that location it veers off through the tract itself. This tract defies any accurate word description. The southeast side of the tract abuts the Frisco right-of-way and extends along it for its full length. There are two churches in the north part of the tract, each on a lot of about two and one-half acres. Each church adjoins the present city limits. A Catholic church owns 12 acres acquired for future use; on this there is now no building. There are nine platted lots adjoining the city limits, on which five houses have been built. About eight other houses constitute the total remaining construction in the tract. Each of these is on what is described as a “small parcel.” One couple owning eight acres pasture a few head of cattle and a horse. Another couple employs their small acreage to feed hogs. The vast majority of this tract is undeveloped and vacant. One of the city’s aldermen, who favored the annexation, owns 20 acres of the vacant land and has an option to purchase an additional 40 acres. His plans for this property are “[Ejventually a subdivision * * * for homes, residential,” and he believes that if the land is taken into the city its value would increase. Some of the property at the north end of this tract is served with city water.

Section 71.015, RSMo 1959, V.A. M.S., commonly known as the “Sawyers Act,” requires that the city’s petition shall state facts showing: “2. That such annexation is reasonable and necessary to the proper development of said city; and 3. The ability of said city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective.” Since the passage of that act, the burden of establishing those elements by evidence rests squarely on the city which seeks to annex. City of Olivette v. Graeler, Mo., 338 S.W.2d 827; City of Aurora v. Empire Dist. Electric Co., Mo.App., 354 S.W.2d 45; City of Tracy v. McCrea, Mo.App., 374 S.W.2d 553; City of Houston v. Duff, Mo.App., 338 S.W.2d 373; City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4. It is not the prerogative of a court, trial or appellate, to substitute its judgment or discretion for that of the city’s legislative body, and if the evidence on the issues prevails in the city’s favor or if the issues are debatable, the court should not interfere. Hankinson, supra; Empire Dist. Electric, supra; City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505. But both parties, the city and the area proposed, are entitled to the benefit of the test of reasonableness. Graeler, supra; also, City of Olivette v. Graeler, Mo., 369 S.W.2d 85. In other words, the annexation must be reasonable as to those living in the outside area, as well as to those living in the city.

We shall not set out here all the factors which may properly be considered, pro or con, in an annexation case. They are set out rather fully in the following cases: Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236; City of Tracy v. McCrea, Mo.App., 374 S.W.2d 553; City of Fulton v. Dawson, supra; State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762; City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546. We shall refer to certain of these factors later.

We hold at the outset that we may not and shall not approve the annexation of one of the proposed tracts and reject the annexation of the other. It is true that the resolution describes the tracts separately, but it could hardly do otherwise as they are separated physically, and they lie largely on opposite sides of the south part of the city. The city adopted one single resolution for the annexation, authorized the filing of “an” action for declaratory judgment, and called for the holding of a single election if the annexation was approved. The preliminary paragraph of the resolution was as follows: “BE IT RESOLVED, by the Board of Aldermen of the City of Bourbon, Missouri, that the following described tracts of unincorporated land adjoining the City of Bourbon, Missouri, be annexed to the City of Bourbon, Missouri; that the legal description of said tracts of land is as follows:” (Emphasis is ours.) We cannot speculate as to what was in the minds of the aldermen; nor can we fairly say that they would have adopted a resolution for the annexation of one tract without the other. We may not substitute our judgment for that of the Board by holding, in effect, that it should only have annexed so much and no more. The proceeding was instituted and treated as one annexation and it must stand or fall as such. One petition was filed in one count, for one total annexation. We had regarded this proposition as relatively well settled by such cases as: City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4; City of Aurora v. Empire Dist. Electric Co., Mo.App., 354 S.W.2d 45; City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505, and State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007. In St. Joseph, supra, we said at 312 S.W.2d, loc. cit. 17-18: “It will not be our function here, if indeed it is ever proper, to say that the council might have more reasonably exercised its discretion if it had taken in less land and had excluded some of the outlying areas. In State ex inf. Mallet ex. rel. Womack v. City of Joplin, 332 Mo. 1193, 62 S.W.2d 393, 397, the court said, quoting with approval from the Major case: ‘ “It is no province of the court to substitute its own judgment of what would be the best or most advisable line for the extended limits; it is not its province to subtract or add to the territory selected by the municipality to be annexed; its sole duty is to examine the extension as actually attempted and to say whether it should remain. * * * ’’ ’ We examine the extension as actually enacted.”

If we should approve one tract for annexation and disapprove the other, we would have traveled a long way toward a ruling that we could (and should) reduce the area of a single, sizable tract by holding that the annexation should stop at an expressway, a railroad, or a natural boundary, because of the diverse character of the land uses. So far, no one has contended that the courts should do that. In the only case we have seen to the contrary, Williams v. City of Illmo, Mo.App., 279 S.W.2d 196, the Springfield Court of Appeals approved the annexation of one tract and disapproved the other, with no discussion of the question of severability. It also held that the burden of establishing unreasonableness was upon the residents of the proposed areas, although the opinion was written well after the enactment of the Sawyers Act. In City of Aurora v. Empire Dist. Electric Co., Mo.App., 354 S.W.2d 45, the same court made a rather feeble effort to distinguish the Illmo case on its facts. We do not find that it is really distinguishable, and insofar as it ruled upon the tracts separately and thereby approved the annexation as reduced, it should no longer be followed. This is also true of its reference to the burden of proof. It is obvious that the safest manner in which to propose the annexation of separate and distinct tracts is by separate proceedings; also, in that way the people of the city are permitted to express their choice upon each tract separately. If a city wishes to stand or fall upon the whole “package,” it may proceed as plaintiff did here.

In arriving at our conclusion it will be necessary to discuss the tracts separately, for they are so treated in the evidence. This will involve some slight repetition. In Tract No. 1, consisting of 25 acres, there are two platted subdivisions of 36 lots with approximately 14 houses on them; there is also one other house on a four-acre tract, and a largely unused sawmill on the remaining tract of about three acres. This relatively narrow strip lies along the south part of the western city limits. The mere fact that a part of a tract is vacant or is used for agriculture does not, per se, prevent its annexation. Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236, 249. This comparatively small tract might conceivably be considered as a place where the population of the city “has spilled over its boundaries.” It appears to be reasonably well served with existing roads and streets; the occupants now have city water and fire protection available; it would seem to be reasonably well located for sewer service if that function is ever expanded. It does contain some vacant land, platted and un-platted, which might be used for housing; some of this land is now presumably held for sale as town lots; and the tract would seem to have some value existing by reason of its adaptability for “prospective town uses.” The addition of this tract to the city would make its boundaries somewhat more regular. Counsel for defendants concede that: “It is, frankly, a debatable point as to whether or not the portion of the area designated as Parcel No. 1 might reasonably be annexed.” It is true that those who testified from that area opposed annexation but that is not a controlling test. If the reasonableness of an annexation is “debatable,” that ends the matter, so far as the courts are concerned; see cases already cited. If this area alone was sought, the annexation might well be sustained.

Tract No. 2, already generally described, is an area about two-fifths as large as the total present area of the city. It has no roads or streets except two old highways which border it and, to a lesser extent, run through it. In its 130 acres it contains only nine platted lots (with five houses) which, by means of a very irregular line, were omitted in the last annexation. There are approximately eight other houses on the tract and these are on plots of a few acres so situated and arranged as to be most dissimilar to ground platted for urban-type dwellings. There is no evidence that a 3.2 beer tavern within the confines of Tract No. 2 needs policing or that the two churches require municipal supervision. The rest of Tract No. 2, constituting by far its greatest area, is vacant. There is no indication that the population of the city has “spilled over” onto this tract or that the territory has taken on the character of urban property. The residents were divided in their views on annexation but this is not in any sense controlling, as indicated. One of those favoring it was an alderman who owned 20 acres of the tract and had an option to purchase 40 more. The evidence of a supposed housing shortage in the city is not compelling; there is vacant land in the city (approximately 60 acres, exclusive of platted lots) most of which undoubtedly could be used, under proper circumstances, for that purpose and presumably will be. The town has certainly had no explosive growth and the hopes for much future expansion are not based on any immediate, concrete prospects. There certainly has not as yet been any exodus of the citizens into Tract No. 2 in search of homes. The area is not needed for any extension of streets or utility lines, or presently “to supply places of abode or business of its residents * * Crestwood, supra. Only four houses had been built upon the 38 platted lots in the Siebenman Acreage Subdivision, with an estimated 45 acres still un-platted, and at least one-half thereof is desirable for homesites. A city should not be denied annexation simply because there are vacant lots within its boundaries; and neither should it be foreclosed from making reasonable provisions for the foreseeable future. However, what is reasonable for the future should be judged chiefly from the known and existing facts.

It does not definitely appear that plaintiff has furnished or will furnish city water to any residents of Tract No. 2 in the near future unless they run their own lines; they now have fire protection and police service (through deputy sheriffs) when desired. Under existing circumstances it is impossible to visualize sewer services to this area in the foreseeable future when from one-half to three-fourths of the present area of the city does not have it. The distance from the south end of the sewer line to the south end of Tract No. 2 is one and one-half miles. The addition of this area would make the boundaries of the city still more irregular by adding a long, attenuated point to the south; it would have nothing directly to do with the operation of the proposed mine, for which land has been bought elsewhere, outside the city. Plaintiff does not propose to extend any streets into this area. The plaintiff has failed to show that the annexation of Tract No. 2 is reasonable or necessary to the proper development of the city; we need not discuss further its ability to furnish its “normal municipal services” to the area within a reasonable time. If the first statutory requirement fails, the annexation is per se, unreasonable. We do not consider that question, on the present evidence, to be “debatable.”

Since we have held this annexation to be unreasonable and arbitrary in what is, by far, its greater part, we so rule with reference to the entire annexation. What the city may do in the future is strictly a matter of its own choice.

The judgment is reversed and the trial court is directed to dismiss plaintiff’s petition.

All concur.


source: Caselaw Access Project

author: STOCK ARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jackie Wayne SAYRE, Appellant.
    No. 52820.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.

      Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    George A. Adolf, St. Louis, for appellant.
   STOCK ARD, Commissioner.

Defendant was charged by information with assault with intent to kill with malice. Defendant appeared before the court with counsel on October 18, 1965, and withdrew his previous plea of not guilty and entered a plea of guilty. The record does not affirmatively show that before accepting the plea of guilty the trial court determined that the plea was made voluntarily with an understanding of the nature of the charge. See Criminal Rule 25.04, V.A.M.R. Imposition of sentence was deferred to November 23, 1965 “to permit [defendant] to make an application for parole.” For some reason, not shown by the record, sentence was not pronounced until June 8, 1966, and on that day the court sentenced defendant to five years in the custody of the department of corrections. On the same day defendant also entered a plea of guilty to the charge of burglary, second degree, and stealing, and was sentenced to two years in the custody of the department of corrections, that sentence to run concurrently with the five year sentence.

On January 23, 1967, defendant filed pro se a motion pursuant to Criminal Rule 27.26 to vacate and set aside the judgment and sentence of five years on the grounds that (1) the information failed to charge the offense of assault with intent to kill with malice, and (2) defendant was advised by his attorney that if he would enter a plea of guilty he would be released on parole, and therefore (by inference from the allegations in the motion) the plea of guilty was not voluntarily made. On January 24, defendant’s motion was denied without a hearing, and defendant filed his notice of appeal. Thereafter, counsel was appointed to represent defendant on this appeal.

There is only one assignment of error in defendant’s brief to this court, and it is that the trial court erred in denying defendant’s motion to withdraw his plea of guilty because “the court had failed to fully inform appellant of the nature of the crime with which he was charged and the consequences of pleading guilty to it, in violation of due process of law, and therefore, should not have accepted such plea.” Apparently, after consideration, counsel has abandoned the contention made in the motion that the information was insufficient.

As previously noted, the record does not show a substantial compliance by the trial court with Rule 25.04 prior to the acceptance of the plea of guilty to the charge of assault with intent to kill with malice. However, in State v. Mountjoy, Mo., 420 S.W.2d 316, we held that a defendant may not by reason of Rule 27.25 withdraw his plea of guilty as a matter of right on the basis that the record does not demonstrate a substantial compliance with Rule 25.04 at the time the plea of guilty was accepted. The withdrawal of a plea of guilty after sentence is appropriate only to correct manifest injustice. An application to withdraw a plea of guilty made after sentence is an attack on the validity of that sentence within the meaning of Rule 27.26, as amended and effective September 1, 1967. If it be found on the hearing on the motion to vacate the sentence, notwithstanding the insufficiency of the record at the time the plea was accepted, that the plea of guilty was in fact voluntary and was made with an understanding of the nature of the charge, then no manifest injustice could have resulted.

In this case, defendant’s pro se motion does present an issue of fact within the meaning of Rule 27.26 as to the voluntariness of the plea, and the record made at the time the plea of guilty was accepted does not conclusively establish that the plea was voluntarily made with an understanding of the nature of the charge. Defendant was not represented by counsel at the time the motion was presented to and ruled on by the trial court, and no evi-dentiary hearing was held. The maximum relief to which defendant is entitled in this court is a reversal of the order and judgment of the trial court and a remand for further proceedings. This is a situation comparable to that in State v. Stidham, Mo., 415 S.W.2d 297.

The order and judgment is reversed, and the cause is remanded with directions that all further proceedings be in accordance with the provisions of amended Rule 27.26 and the directions contained in the last paragraph of the opinion in State v. Stid-ham.

BARRETT, C, concurs in result.

PRITCHARD, C., concurs.

PER CURIAM:

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

All of the Judges concur.


author: FINCH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Herman Bernard JOHNSON, Appellant.
    No. 52914.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Edward Lander, Special Asst. Atty. Gen., Clayton, for respondent.
    J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   FINCH, Presiding Judge.

Defendant, charged with robbery, first degree, waived trial by jury after receiving advice of counsel and after the trial court made inquiry to establish that the waiver was made knowingly and voluntarily. The trial judge found defendant guilty, assessed his punishment at ten years’ imprisonment, and defendant appeals.

The evidence on behalf of the State will support the following recital of facts and would justify the trial court in so finding: At about 12:30 a.m., on December 13, 1966, Clifford Davis, a taxicab driver, picked up two Negro men at 35th and Prospect Streets in Kansas City. One man (defendant herein) got into the rear seat of the cab and the other (later identified as Roosevelt Johnson) into the front seat with Davis. The streetlights plus lights of a liquor store illuminated the corner where the cab driver picked up the two men. They instructed Davis to take them to the vicinity of 28th and Wabash Streets to a house, the front of which was decorated with Christmas tree lights. At that time, the man seated in the back seat said, “This is a holdup” and placed a gun against Davis’ neck. Davis turned enough to see the gun. The man in the front seat then took all of the paper money which Davis had in his top pocket plus change in his right pocket. The bills taken were folded separately lengthwise, with the front of each bill folded in. The money taken amounted to approximately $32.00. The man also searched Davis and felt around his waist to see if he had anything else. He then pulled the radio speaker out of its socket and took the car keys from the ignition switch. Davis thought they were thrown outside but later found them on the car seat.. The two men then left the cab and walked south on Wabash. After they left, Davis got out of his cab and walked a block and a half to a telephone where he called the dispatcher to report the robbery and give a description of the two men who held him •up. He was instructed by the dispatcher to return to his cab and wait for the police.

Shortly, Officer Karnes arrived at the cab, took a report from Davis and then put out a pickup for the two men. One was described as being shorter and wearing a dark overcoat, and the taller one wearing a light colored overcoat. The latter was lighter skinned. Officer Mathis called Officer Karnes on the radio and reported he had seen two persons fitting these descriptions at 31st and Prospect, near the Log Cabin Tavern. He had noticed them particularly because, although it was quite cold, one man was carrying his overcoat over his arm. Officer Mathis was on Prospect almost to Linwood when he heard the report on the robbery. He turned around and went back to 31st and Prospect but was unable to locate the two men. Mathis then went to Wabash and 28th where he joined Davis and Karnes. Mathis also had noticed that one of the men had what he described as processed hair that was kind of windblown and wavy, and he confirmed from Davis that this description fitted one of the two men who held him up.

The officers and Davis searched the area further, and then Karnes suggested that the men might have gone into the Log Cabin Tavern and they ought to look there. Davis and Officer Karnes entered the Log Cabin Tavern, where Davis pointed out two men who were at a table drinking beer and said that they were the men who held him up. Officer Mathis first checked for a rear exit and then entered the tavern and joined Davis and Karnes at the table where defendant and Roosevelt Johnson were seated. Officer Karnes placed the two men under arrest and searched them. He found a .38 caliber Smith and Wesson revolver loaded with three rounds of ammunition in the pocket of defendant’s overcoat. No weapon was found on his companion, Roosevelt Johnson. A subsequent search of the two men at police headquarters revealed a ten-dollar bill, five one-dollar bills and a dollar and ten cents in change on the defendant. Fourteen one-dollar bills, folded separately in the manner which had been described by the cab driver, were found in the sock of Roosevelt Johnson. In addition, Roosevelt Johnson had the bushy hair which had been noticed by Officer Mathis and confirmed by the cab driver.

At about 3 a.m. that morning, the police placed the defendant and Roosevelt Johnson in a lineup together with two other Negroes and the defendant and Roosevelt Johnson were identified by the cab driver Davis as the two men who had held him up.

Defendant first contends that the evidence was not sufficient to support a finding of guilty by the trial court. We overrule this contention. In our opinion, the evidence clearly was sufficient to sustain the conviction. The cab driver observed the two men who held him up and later was able to describe and to identify them. Within an hour or so after the robbery, the two men were located in a tavern approximately four blocks from the scene of the robbery and were identified by the cab driver as the men who held him up. When searched, they had money approximating the amount taken from the cab driver and the bills were folded in the manner in which he had described. In addition, defendant had in his overcoat pocket a loaded revolver, which the cab driver identified as of the type with which he was held up.

The second question raised by defendant is that the court erred in not sustaining a motion made during trial to exclude and suppress as evidence the revolver and the currency. No motion to suppress in advance of trial was filed. When the revolver and the money were marked as exhibits and offered in evidence, the objection made thereto was not on the basis that they had been obtained by unlawful search and seizure. However, after Davis and Officers Karnes and Mathis had testified, counsel for defendant made an oral motion to suppress on the ground that the search was made prior to arrest and without the defendant being advised of his constitutional rights. Defendant’s brief asserts that it was error to overrule such motion on the ground that the evidence, taken as a whole, shows that the search was made first and the gun found before any arrest was made, and that at such time there was no reasonable grounds to believe that defendant had committed any felony, and he did not commit any crime in the presence of the officers themselves prior to the arrest.

We do not agree that the evidence ■establishes that the search preceded the arrest. There was some variance in the answers as to the time of the search, partially caused, no doubt, by the way in which the •questions were framed, but Officer Karnes, who made the arrests, said: “I believe I placed them under arrest before I even searched them. As soon as Mr. Davis stated they were the ones, I told them they were under arrest.” The police officer, based on information furnished by Davis, had reasonable cause to believe that Davis had been robbed at gunpoint by two men a short distance from the Log Cabin Tavern and that the two men found in the tavern, i.e., defendant and Roosevelt Johnson, were the ones who had committed that robbery. It is well settled that “Police officers may arrest without a warrant if they have reasonable cause to believe that the person arrested is guilty of a recent felony.” State v. Craig, Mo., 406 S.W.2d 618, 622. Paraphrasing some of the language in State v. Craig and applying it to the facts here, we may properly say that the facts related to the officers gave them reasonable cause to believe that defendant and Roosevelt Johnson were the men who had committed the robbery and under those circumstances the arrests made were not on suspicion merely but in the exercise of a reasonable discretion, in apparent good faith.

When one has been lawfully arrested, a police officer may take from him articles of evidentiary value without violating his constitutional guaranties against unreasonable searches and seizures. The revolver and shells and the money were lawfully seized as a result of a lawful search incident to a lawful arrest. State v. Phelps, Mo., 384 S.W.2d 616, 619. We rule this second contention against defendant.

Finally, defendant’s brief asserts that the trial court erred in failing to declare a mistrial on its own motion where, it is claimed, it appeared that there was some evidence that the cab driver Davis was not in possession of his full faculties at the time of trial due to intoxication or drug stimulants. An examination of the record does not disclose any basis in fact for this charge against the trial court. Counsel for the defendant asked Davis if he had had anything to drink the morning of trial or the night of the robbery, and in each instance the witness stated that he had not. The transcript indicates that counsel for the defendant claimed that the appearance of witness Davis indicated that he had been drinking, but the trial court observed him and evidently found no basis for counsel’s contention. In that connection, counsel asked Officer Mathis if he had observed Mr. Davis in court that morning and whether his appearance was the same as it was on the night of the robbery. The officer testified that he had had an opportunity to observe and said that Davis had looked the same both times and that he looked as though he was half asleep. This type of facial expression, however, did not indicate that Davis was intoxicated and the trial court did not so find. We also rule this contention against the defendant.

We have examined those parts of the record required under Supreme Court Rule 28.02 and find no error therein.

The judgment is affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Jerry CRANE, Appellant.
    No. 51926.
    Supreme Court of Missouri. Division No. 2.
    Oct. 9, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 13, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Jonathan Edwards Clarke, Elsberry, for appellant.
   EAGER, Judge.

Defendant was tried in Lincoln County upon an Information charging first degree murder. Upon trial, he was convicted by a jury of second degree murder. He was represented by counsel of his own selection. After hearing evidence of a prior conviction, sentence and imprisonment, the Court assessed defendant’s punishment at a term of twenty-five years. Thereafter, defendant’s motion for a new trial was sustained for error in an instruction, and a change of venue was granted to the Circuit Court of Warren County. There, defendant was tried again on the same information and the jury found him guilty of manslaughter. A claim of self-defense was thus rejected by the jury. Again he was represented by the same two attorneys. The Court assessed defendant’s punishment at a term of nine years, over the objections of the State. Within a period of ten days after the verdict, the defendant appeared with his chosen counsel and, both in person and by counsel, unequivocally waived his right to file a motion for a new trial; this was done after the most careful explanation and questioning of the defendant by the court. At that time, one of defendant’s counsel stated that he and his co-counsel had conferred repeatedly, that he had talked at length with defendant, his wife and his mother, and also that “We do not feel that there was any error in law committed or done in any way in the case.” The Court then proceeded on March 22, 196S, to grant allocution and to sentence the defendant to the term previously indicated, with an allowance for his jail time. Presumably he was transferred promptly to the Department of Corrections.

On June 21, 1965, defendant filed a motion seeking a trial transcript as a pauper. This was denied, there being no appeal. Thereafter, certain other motions were filed and ruled on by the trial court, but they are of no consequence here. On February 18, 1966, this Court granted defendant leave to file a delayed notice of appeal pursuant to Rule 28.07, V.A.M.R., and such a notice was filed. The time of its filing is left somewhat hazy by the transcript, but the trial court has found that it was filed within the period of one year allowed by Rule 28.07, and we accede to that finding. The Court very properly allowed defendant a free transcript of the record proper only, in view of his express waiver of a motion for new trial. Defendant’s former counsel were appointed to represent him on this appeal, but they were subsequently allowed to withdraw; new counsel was appointed, and he has diligently and effectively briefed and argued this appeal.

The sole point raised on the appeal is more simply stated than decided. It consists of the contention that by the verdict in the first trial, at which defendant was charged with first degree murder and convicted by the jury only of murder in the second degree, he was placed in jeopardy on the first degree charge; that notwithstanding the granting of a new trial, he could not thereafter be put on trial again for first degree murder, and that his subsequent conviction for manslaughter was constitutionally invalid; as a corollary to this argument, counsel adds the further contention that defendant’s second trial was affected by the fact that he was then charged and prosecuted for first degree murder. These contentions are made solely under the Fifth and Fourteenth Amendments to the Constitution of the United States.

While there might well be some doubt as to whether or not this question can properly be raised without specific objection at the trial, preserved in a motion for a new trial, we have concluded that we should consider it. The point is made as a fundamental constitutional issue which could presumably be raised later by a motion to vacate the judgment and sentence pursuant to our Rule 27.26 or in federal habeas corpus proceedings. State v. Beasley, Mo., 404 S.W.2d 689; State v. Rapp, Mo., 412 S.W.2d 120.

The Missouri law on the subject has been clear, substantially ever since the adoption of our Constitution of 1875. Prior to that in State v. Ross, 29 Mo. 32 (1859), the- Court held that, upon facts similar to ours, the defendant could not legally be put upon trial again for first degree murder. In our Constitution of 1875, Art. II, § 23, the following provision was adopted: “That no person shall be compelled to testify against himself in a criminal cause, nor shall any person after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty; but if the jury to which the question of his guilt or innocence is submitted fail to render a verdict, the court before which the trial is had may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the next term of court, or if the state of business will permit, at the same term; and if judgment be arrested after a verdict of guilty on a defective indictment, or if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law.” That provision was very promptly held to have overturned the law announced in the Ross case. State v. Simms, 71 Mo. 538. There the Court said, l.c. 541: “The change thus made in the said section overthrows the rule laid down in the case of the State v. Ross, supra, that a person who is indicted for murder in the first degree, if tried and convicted of murder in the second degree, which judgment is reversed for error in law, cannot on a second trial be tried for murder in the first degree. They are equivalent to declaring that when such a judgment is reversed for error at law, the trial had is to be regarded as a mistrial, and that the cause when remanded is to be tried anew, and when remanded, that it is put on the same footing as to a new trial as if the cause had been submitted to a jury resulting in a mis-trial by the discharge of the jury in consequence of their inability to agree on a verdict. It is difficult to conceive what other construction can be given to the words added to said section.” That view has been followed consistently in Missouri ever since. State v. Billings, 140 Mo. 193, 41 S.W. 778; State v. Beard, 334 Mo. 909, 68 S.W.2d 698; State v. Higgins, Mo.App., 252 S.W.2d 641; State v. Stallings, 334 Mo. 1, 64 S.W.2d 643. These decisions are also supported by § 556.250, RSMo 1959, which has been in effect since 1879, and is as follows: "When a defendant shall have been acquitted of a criminal charge upon trial, on the ground of variance between the indictment and the proof, or upon any exceptions to the form or substance of the indictment, or where he shall be convicted, but the judgment shall for any cause be arrested, he may be tried and convicted on a subsequent indictment for the same offense, or any degree thereof, or of an attempt to commit such offense.” We also note here (footnote, Green v. United States, 355 U.S. 184, l.c. 216, 78 S.Ct. 221, 2 L.Ed.2d 199) that 19 of the 36 states that have “considered the question” follow the rule which Missouri does. And see also the complete review of state decisions shown in the annotation at 61 A.L.R.2d at p. 1141 et seq. Indeed, the federal authorities have until recently been to the same effect, both as to cases tried in the federal courts and state courts. Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292; Brantley v. State of Georgia, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768; Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288.

The present contention arises because of the opinion in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, which was a review of a federal conviction in the District of Columbia. The defendant was indicted for arson and for a felony murder, which constituted murder in the first degree ; he was found guilty of arson and of second degree murder, with no specific finding on first degree murder in the verdict. The conviction of second degree murder (only) was appealed and reversed. Upon remand, he was again tried for first degree murder and found guilty, with a mandatory death sentence imposed. He had specifically raised the defense of former jeopardy at his second trial. The Court held, in a 5-4 decision, with an extensive and vigorous dissent, that: the first jury had, by its silence, either acquitted defendant of first degree murder or had been discharged without a verdict thereon, and that either of such events constituted jeopardy; that defendant had not waived his right to a claim of double jeopardy by appealing from his second degree murder conviction; and that he could not be retried, constitutionally, for first degree murder. In so ruling, the Court professedly distinguished the case of Trono v. United States, supra. The applicable provision of the Fifth Amendment is: “ * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; * * That provision is by no means as specific as is the provision of the Missouri Constitution on the subject. In a footnote to this decision at l.c. 190, 78 S.Ct. at l.c. 225, the Court said in a brief discussion of the differing rules in the state courts: “Of course, many of the state decisions rest on local constitutional or statutory provisions.” There was and is no intimation in Green that the ruling there should be applied to state courts acting under their own constitutional and statutory provisions. The dissent there held essentially that: “Since the propriety of the original proceedings has been called in question by the defendant, a complete re-examination of the issues in dispute is appropriate and not unjust.” This, in substance, is the rule of the Missouri Constitution (Art. I, § 19, V.A.M.S.), the Missouri statute (§ 556.250) and the Missouri cases.

However, defendant relies further upon the cases of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, and Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, as extending the Green ruling to criminal trials in the state courts by virtue of the seemingly all-embracing arms of the Fourteenth Amendment. In Malloy, again a'5-4 decision, the question involved was self-incrimination; the petitioner, having been convicted on a misdemeanor gambling charge in Connecticut, refused to testify in a gambling probe, and was adjudged in contempt for failure to answer various questions. Upon certiorari, the Court said: “We hold today that the Fifth Amendment’s exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.” The prohibition of the Fifth Amendment against self-incrimination is that no person “shall be compelled in any criminal case to be a witness against himself * * *.” The provision of the Missouri Constitution is: “That no person shall be compelled to testify against himself in a criminal cause * * *.” Art. I, § 19. The two are for all purposes identical, with no such differences as exist in the matter of double jeopardy. What the Court really did in Mal-loy was to extend the federal procedure and case law to the states on that subject. The Court cited other cases in which certain specific provisions of the Constitution had been held applicable to the states under the Fourteenth Amendment, as: the right to counsel (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799); unlawful searches and seizures (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726); freedom of speech (Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138), and coerced confessions as self-incrimination (Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423.) Mr. Justice Harlan, in dissent, said that the Court had thus disregarded “all relevant differences which may exist between state and federal criminal law and its enforcement,” (378 U. S. l.c. 16, 84 S.Ct. l.c. 1498) and that the Court had merely substituted “its own superficial assessment of the facts and state law for the careful and better informed conclusions of the state court.” (378 U.S. l.c. 33, 84 S.Ct. l.c. 1507.) In any event, the Malloy decision did not touch upon the question of double jeopardy.

In the case of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, a divided Court held that comment by the prosecutor and the Court upon the failure of a defendant to testify in a California criminal trial (with the death penalty imposed) violated defendant’s privilege against self-incrimination under the Fifth Amendment as extended to the states under the Fourteenth. The California Constitution, Art. 1, § 13, permitted such comment hut, in so doing, it took a place in the very great minority of states (6 out of 50). Again, we note that only the question of self-incrimination was involved, and that in a very unusual aspect.

In no case which has come to our attention has the Supreme Court held that the double jeopardy provision of the Fifth Amendment as applied by the federal courts, is applicable in state court prosecutions, although it has very recently in an almost complete reversal of prior cases and in a case by case procedure, applied the century old Fourteenth Amendment as a tool for the imposition of several other restrictions upon the states, as noted. Unless and until it does so, we shall continue to follow and apply our own double jeopardy provisions and the limitations thereon (Const., Art. I, § 19, and § 556.250, RSMo 1959) and the uniform constructions placed thereon by our courts since the adoption of our 1875 Constitution.

The decision in United States ex rel. Hetenyi v. Wilkins (C.A. 2), 348 F.2d 844, is not binding upon us. Such is the rationale of the three opinions in People v. Ressler, 17 N.Y.2d 174, 269 N.Y.S.2d 414, 216 N.E.2d 582, as we understand, them, where the Court determined that it should reconsider its own rulings in the light of the cases which we have cited. It is possible that four of the seven judges felt that, in principle, the reasoning of Green had become applicable to the states; if so, we do not agree.

In Wilkins, supra, the Court held (in a 2-1 decision) that the double jeopardy provision of the Fifth Amendment was applicable to a New York State criminal case by virtue of the Fourteenth Amendment. There a defendant had been convicted of second degree murder when tried on an indictment for first degree murder; that judgment was reversed and he was later retried on the first degree charge, found guilty, and sentenced to death. Upon a reversal of that conviction, he was retried again, and eventually sentenced to a term of 40 years to life. The issue in the reported case arose in a habeas corpus proceeding. The dissenting judge stated that such a distinct departure from the prior law should be taken only by the United States Supreme Court, and not by the Court of Appeals. One result of the opinions in that case is obvious, namely, that the Supreme Court has not taken that step. And see the detailed discussion in Vol. 74 Yale Law Journal, 606 et seq.

In People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677, the California Supreme Court, in another divided opinion, indicated that it had previously agreed and did then agree with the reasoning in the Green case in interpreting its own law on double jeopardy, even so as to forbid the imposition of a greater punishment upon a retrial for the same offense. For whatever it may be worth, factually or legally, we note that in Green, Wilkins and Henderson, death penalties had been imposed at the second trials, whereas each defendant had only been subjected to imprisonment at his first trial. See also Kohlfuss v. Warden, 149 Conn. 692, 183 A.2d 626, and Hicks v. Commonwealth, 345 Mass. 89, 185 N.E.2d 739, as at least indicating the view that the reasoning of Green is not binding upon the state courts.

In the absence of binding federal authority the determination of the meaning and application of a state’s provisions prohibiting double jeopardy is strictly a question of state policy, to be determined from the state’s own constitutional (and statutory) provisions. 61 A.L.R.2d 1141, 1150, note. We conclude that we may and should follow the uniform construction of our own constitution, and we so hold.

The judgment is affirmed.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    VALLEY FARM DAIRY CO., Inc., a Corporation, Appellant-Plaintiff, v. Emil HORSTMEIER, etc., and Donald Meers, etc., Respondents-Defendants.
    No. 52750.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    Robertson, DeVoto & Wieland, Morton K. Lange, St. Louis, for appellant.
    Rollin J. Moerschel, Niedner, Niedner & Moerschel, St. Charles, for respondent Emil Hor'stmeier.
    James A. Blackwell, St. Charles, for respondent, Donald Meers.
   WELBORN, Commissioner.

Appeal from judgment of dismissal, on motions of defendants, of plaintiff’s petition seeking recovery of $38,893.56 on an open account.

Valley Farm Dairy Co., Inc., filed suit in the St. Charles County Circuit Court, on October 10, 1966, against Emil Horst-meier and Donald Meers. The claim was based on an account for milk and dairy products sold by plaintiff to the defendants, commencing in 1955, and ending in December, 1963.

The defendants filed motions to dismiss on the grounds that a previous action between the same parties on the same claim in the same court had been dismissed on June 10, 1965, for failure to prosecute “subject to the right to refile said suit within one year from said dismissal, pursuant to the provision of Section 516.230 Revised Statutes of Missouri of 1949 as amended”; that the present suit was not brought within the one-year period, and, therefore, it was barred.

At a hearing on the defendants’ motions, it was shown that the St. Charles County Circuit Court by its “Bulletin,” notified the parties to litigation pending in said court, as follows:

“On June 10, 1965, absent showing of cause why same should not be done, the following cases and motions will be dismissed without prejudice for want of prosecution, subject to refiling within one year under 516.230, YAMS, where applicable:
NUMBER DATE FILED STYLE
* * * * * *
3190 2-24-64 Valley Farm Dairy Co. v. Emil Horstmeier, et al.
* * * *
* * * *

On June 10, 1965, the following order was entered in Cause No. 3190:

“Order:
“Pursuant to notice given and no good cause having been shown why same should not be done, the following cases are dismissed without prejudice for want of prosecution, subject to re-filing within one year under the provisions of Section 516.230 YAMS, where applicable:
Number Date Filed Style
* * *
* * * * * * * * * * *
3190 Feb. 24, 1964 Valley Farm Dairy Co. v. Emil Horstmeier, et al.
* sjc »
⅜ ⅝ ⅝ s}« ⅜ # ⅜ ⅝ ⅜

On this showing and on the showing that No. 3190 involved the same claim as the present case, the trial court sustained defendants’ motions to dismiss and this appeal followed.

The respondents here make no contention that plaintiff’s claim was barred by the five-year statute of limitations. §§ 516.120, 516.160, RSMo 1959, V.A.M.S. Their contention is that the trial court’s order, upon the lapse of one year’s time, amounted to a dismissal with prejudice, precluding the instant action.

Section 516.230, RSMo 1959, V.A.M.S., referred to by the trial court in its notice and order, reads as follows:

“If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed; * *

As appellant points out, numerous cases have held that such section operated to extend, not to shorten, the period of limitations. Long v. Long, 141 Mo. 352, 44 S.W. 341, 346(5); Karnes v. American Fire Ins. Co. of Philadelphia, 144 Mo. 413, 46 S.W. 166, 167(2); Tate v. Jacobs, 47 Mo.App. 218; Kline v. Groeschner, 280 Mo. 599, 219 S.W. 648, 651 [9].

Supreme Court Rule 67.03, V.A.M.R., relied upon by respondents, is of no assistance to them in this case. Respondents rely upon the italicized portion of said rule, which reads as follows:

“A dismissal without prejudice permits the party to bring another action for the same cause, unless the action is otherwise barred. A dismissal with prejudice operates as an adjudication upon the merits. Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action or for improper venue shall he with prejudice unless the court in its order for dismissal shall otherwise specify"

Here the trial court specifically stated that the dismissal was without prejudice. The further reference to § 516.230, RSMo 1959, V.A.M.S., served merely as a reminder to plaintiffs whose action might have otherwise been barred that they had one year for refiling if § 516.230 applied to their cause of action. Whether the trial court might have made an order to the effect which respondents attribute that here involved, we need not determine. We are satisfied that the trial court did not intend its order to be given such effect. In that connection, we note that the judge who sustained the motions to dismiss in the present case is not the judge who entered the dismissal of the prior cause, so this is not the case of a trial court’s interpretation of its own order.

Respondents cite no authority which in any manner supports their position. Other than § 516.230 and Supreme Court Rule 67.03, supra, they cite only State ex rel. Ward v. Stubbs, Mo.Sup., 374 S.W.2d 40, and W. M. Crysler Company v. Smith, Mo.App., 377 S.W.2d 134. Insofar as in any respect here pertinent, those cases hold merely that a dismissal, with prejudice, for failure to prosecute, may be res ad judicata of the issues pleaded in the dismissed petition or cause of action. Here, there was no dismissal with prejudice and those cases are in no manner applicable.

The judgment is reversed and the cause remanded with directions to enter a new order, overruling defendants’ motions to dismiss.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Robert Clifton MOUNTJOY, Appellant.
    No. 52576.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.

      Norman H. Anderson, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   STOCKARD, Commissioner.

Defendant has appealed from an order of the circuit court, entered after an evi-dentiary hearing, overruling his motion pursuant to Criminal Rules 27.25 and 27.26, V.A.M.R., to set aside his plea of guilty to the charge of robbery in the first degree.

At the hearing on the motion a transcript of the proceedings at the time the plea of guilty was éntered was offered and received in evidence, and it is necessary that we relate what occurred at that time.

Defendant was represented by able counsel experienced in criminal trial work who-had been employed by his mother. His trial started on November 1, 1961, and after the jury had been selected but before it was sworn, defendant and his counsel appeared before the trial judge in chambers. Counsel stated that he wanted to “make a record,” and he then advised the court that he had conferred with defendant and had advised him of his rights and the penalties, attendant to a conviction of the offense charged, and that he had “advised him to enter a plea of guilty.” He further stated: “The court has indicated that it would give serious consideration to the defendant’s extreme youth of eighteen years, and the fact that he has no previous record. The defendant however has expressed an adamant wish and demand and desire that he does not desire to plead guilty, and that he desires to stand trial.” Counsel then added that he was greatly handicapped in representing properly the defendant because he “has not and apparently will not communicate to counsel what his defense is to this case,” that he “has refused to read a copy of his purported confession which was furnished to us by the counsel for the state,” and that while he has indicated that he desires to take the witness stand in his own behalf he “will not communicate to counsel what testimony if any he intends to give.” Counsel then advised the court that “in the defendant’s best interests” he intended to call as witnesses defendant’s mother and other members of his family “to mitigate and minimize some of the testimony on behalf of the State,” but that defendant does not desire this to be done, and has instructed counsel not to call those persons as witnesses, and has indicated that if counsel violates his wishes he intends to-create a disturbance by “shouting and throwing a chair into the jury box.” To this the defendant replied: “I ain’t got m> lawyer. I don’t want this lawyer. He is telling you I am guilty arid I ain’t.” In answer to some comments by the court, defendant further stated: “He [his counsel] is not defending me in court anywhere,” “he won’t try me, that’s all. He ain’t nothing,” and “I won’t wish to have this lawyer. I’ve got rights.” Counsel then stated that although defendant had previously announced that he desired his present counsel to defend him, he now claimed to have another lawyer who is to try the case, but he has not disclosed the name of that lawyer and his mother has advised counsel that there is no such person. Counsel then stated that if defendant did not desire him to act as his attorney he requested permission to withdraw from the case. The court stated that it would not permit counsel to withdraw at that stage of the proceedings. Counsel stated to the court that he had advised the defendant the best that he could, and that “it is my feeling now that the only defense which he has consists in presenting witnesses * * * from his family, and that I do intend to call them.”

After the court commented on the reputation, capabilities and experience of defendant’s counsel, defendant replied: “This present counsel done told you I was guilty; he stood right there and told you. And I say I am not.” The court then advised defendant that the purpose of the trial was to find out whether he was or was not guilty, and that he would receive a fair trial. After admonishing defendant that if he initiated any disturbances in the courtroom he would be held in contempt of court, the trial court directed that the parties proceed with the trial.

Thereafter in the courtroom, but out of the hearing of the jury panel, counsel for defendant advised the court that he had “just been advised that at this time the defendant wishes to withdraw his plea of not guilty to this charge and enter a plea of guilty.” The record then shows the following :

“The Court: Is that true, Mr. Mountjoy ?
“Mr. Robert Clifton Mountjoy: Yes.
“The Court: You realize of course that you are entitled to a jury trial.
“Mr. Mountj oy: Yes.
“The Court: And if found guilty by a jury the punishment imposed might be more or less or the same that this Court might impose, you understand that?
“Mr. Mountjoy: Yes.
“The Court: You are asking that I accept your plea of guilty because you are guilty, is that correct?
“Mr. Mountjoy: Yes.
“The Court: Very well. I will accept this defendant’s plea of guilty, but I want a presentence investigation. Will the prosecutor have a recommendation to make?
“Mr. Lawrence F. Gepford: May I withhold my recommendation, Your Honor, at this time ?
“The Court: Yes. Very well, the court accepts the defendant’s plea of guilty, and orders a presentence investigation to be made, and sentence will be deferred until November 15, 1961.”

On the appointed date defendant and his counsel appeared before the court for sentencing. At that time the court stated that it had received and studied the presentence investigation report and the files of the prosecuting attorney on which the pending and other charges against defendant were based. The court stated that it was “very difficult” for it to impose the sentence that it had concluded “must be imposed,” and it then announced the sentence to be imprisonment for a term of fifteen years. The defendant then stated: “Your Honor, Mr. Schrader [defense counsel] and the Prosecutor says on my plea of guilty I pleaded guilty to five years.” The court replied as follows: “Nobody told you that. Everybody, every lawyer that does any business with the court knows that I do not accept any plea of guilty upon any contract with the defendant. You pled guilty and into the record stated that you were pleading guilty because you are guilty, * * The prosecuting attorney then announced that it was dismissing a separate and different charge against defendant of assault with intent to rob with malice aforethought, “for the reason that the State is unable to make a case, the witnesses are dead.”

On August 19, 1966, almost five years after he entered his plea of guilty, defendant filed a motion in the trial court pursuant to Criminal Rule 27.25 to set aside the judgment of conviction and permit him to withdraw his plea of guilty. He alleged in the motion that (1) he entered the plea of guilty “because of fraud and collusion, [mis?]-apprehension and lack of representation of petitioner’s counsel;” (2) there was “collusion and agreements between counsel for defendant and counsel for the State;” (3) he was “under constant duress and was led to believe by counsel for the State as well as counsel for defendant that if he would enter a plea of guilty, because of his youth and because he had no prior felony record, he would receive only five years;” (4) he was “led to believe by his counsel that he had no defense, and that there were no mitigating circumstance when in fact there were, and petitioner-defendant did have have a good defense;” (5) that he was “reluctant to plead guilty, but finally did so at the urging of counsel for the state and counsel for defendant with the understanding, ‘or because of the understanding’ that he would receive only five years imprisonment;” and (6) the court knew that “it was not the wishes of defendant to enter such a plea to this crime, and yet upon the plea of guilty, failed to question defendant to see whether there was fraud involved or whether or not counsel for the State had made any promises of a light sentence to the defendant.”

The transcript shows that two representatives of the Defender Society of Greater Kansas City were appointed to represent defendant at the hearing on the motion, but with no further order on this matter, at the hearing defendant was represented by different counsel, apparently of his own selection.

In his testimony defendant attempted to emphasize, as he stated it, that he “didn’t know nothing about court proceedings,” that at the time of his plea he was only eighteen years of age, and that prior to trial his counsel repeatedly advised him to plead guilty. Defendant had a separate and different charge pending against him, apparently the one which was dismissed immediately after sentencing, and the facts giving rise to this separate charge were that defendant and the then husbands of his two sisters (at the time of the hearing on the motion both had been divorced) had assaulted a blind man and robbed him of a check and had taken his hearing aid. Defendant testified that his counsel had told him that he “was involved with robbing a blind man and if I did it, they would give me fifty years.” He also testified that his counsel told him that he “had to plead guilty, that he was going to put my mother and sisters on the stand and tell the jury that I was guilty,” and that if defendant would not let his mother “get on the stand and tell the jury that [he] was guilty that he [counsel] did not want to try the case in Court.” The purpose of this, according to the defendant, was that his counsel “figured if my people got on the stand and told the jury I was guilty that they would give me less time than what the judge would,” and that this would be “sympathy strategy.”

After the conference in the judge’s chambers, according to defendant, his counsel again “told [defendant] to plead guilty,” and told him that he “didn’t have a chance, * * * other than having [his] mother plead [him] guilty to the jury.” When the defendant told his counsel that he “wouldn’t plead guilty to nothing,” he “stood there shaking his head.” Defendant then said that “my people were nervous, and I figured I had to go ahead and plead guilty — tell the jury I was guilty. How could I plead not guilty?” Defendant also stated that he believed that he had an “understanding” that he would receive a sentence of five years with credit for “jail time,” that he “had to plead guilty because they were going to plead me guilty to the jury,” and he had no intent to plead guilty except for this understanding.

Defendant was asked if he was “telling the court at this time [the hearing on the motion] that he was not guilty,” “and he replied that he was asserting that he was “not guilty of first degree robbery,” but in answer to a question as to his age when he entered his plea of guilty he said that he was eighteen, “but not when I robbed the guy.”

Defendant’s mother and two sisters testified. They each stated that defendant’s counsel had said or caused them to believe that if defendant entered a plea of guilty, he would receive a sentence of five years. The mother testified that defendant’s counsel “said he had a conference with the judge and the prosecutor,” and that counsel had said that the court “had agreed upon a five year sentence.” One of defendant’s sisters also testified that defendant’s counsel had said that “he had already talked it over with you [the trial judge] and Mr. Gepford and that he had no defense for Robert.” The other sister said that she urged defendant to plead guilty because his counsel “said that was his only chance, that he was going to get fifty years.”

The trial court then directed a recess to obtain the testimony of defendant’s counsel and of the counsel for the state at the proceeding on November 1, 1961. Their version was substantially different from that of defendant and his witnesses.

Defendant’s counsel testified that approximately a month prior to November 1, 1961, he first conferred with the State’s attorney about a plea of guilty. At that time the State’s attorney indicated that in the event of a plea of guilty by defendant he would make a recommendation as to the punishment. Defendant’s counsel stated that he did not remember the exact number of years that was discussed, but that possibly it was for a term of five years. Counsel then conveyed the information to the defendant, but defendant stated that he did not want to plead guilty and wanted to go to trial. Counsel then prepared for trial, and after the jury had been selected, the conference in the judge’s chambers occurred as previously set out. Counsel reported to defendant’s mother and his two sisters what had occurred in the judge’s chambers, and “they asked to talk to [defendant] by themselves without counsel being present.” Thereafter defendant’s mother reported to counsel that “he wants to change his plea to guilty,” and she asked whether “the prosecutor [would] still make a recommendation ? ”. Counsel then conferred with the State’s attorney who said that “in view of the matters that had taken place during that day,” apparently referring to defendant’s threat to cause a disturbance in the courtroom and his conduct in the judge’s chambers, he was not going to make a recommendation, and counsel reported this to “them” (defendant, his mother, and his sisters) and stated that if there was a plea of guilty it would be “without a recommendation from the prosecutor’s office.” Counsel asserted positively that there was no agreement concerning a recommendation from the State’s attorney. On cross-examination, counsel stated that only one time did he recommend to defendant that he plead guilty, and that was about a month before trial, and at that time he told defendant that the prosecutor had said that he would make a recommendation. He further stated that he did not “remember one way or another but it is entirely possible” that at his conference with defendant’s mother and sisters after the incident in the judge’s chambers that he recommended to them that defendant plead guilty. In answer to the question whether he had mentioned to defendant that he “felt the court would be lenient with him because of his age and no previous record,” counsel stated that such discussion would have been in the conversation with defendant held a month before trial, but “after the events occurred here in the courtroom and here in chambers [he] wouldn’t have made such a statement.” When asked if he had told defendant that if he went to trial it would be necessary to have his mother and sisters testify, counsel replied as follows: “We had a discussion as to what his defense was going to be and he never would tell me what his defense was other than he wanted to take the stand himself. As to what he was going to say, he said, ‘You will hear it from the stand,’ and I said, ‘We had better put on your mother and your two sisters to mitigate some of the testimony that the prosecutor is going to put on about your personal habits, et cetera, and they were agreeable to testifying in his behalf.” Counsel admitted that this would have been “for the purpose of trying to secure sympathy.” In answer to questions by the court, counsel stated that he “absolutely [did] not” tell the defendant or his mother or sisters that the court had said that on a plea of guilty to the charge of first degree robbery the court would sentence the defendant to five years and would give him credit for jail time. He further testified that he had made no “promise of any kind” to defendant, and that he had not discussed with the court what the sentence would be in the event of a plea of guilty.

The brother of defendant’s counsel, also an attorney with extensive experience in criminal trial work and associated with defendant’s counsel in the practice of law, had planned to assist in the trial of defendant’s case. He confirmed the fact that in their discussions with defendant he refused to tell them what his defense would be but repeatedly told them that “You’ll find out when I take the stand.” The brother testified that he advised the defendant of the seriousness of the charge against him, that he “thought the jury would become incensed when they heard the facts,” and that if his threatened conduct in the courtroom occurred he could look for other charges to be made.

The attorney who was acting as counsel for the State at the trial testified. He stated that he “was not sure” but that “it could be” that “at one time” he said he would recommend a sentence of five years, but he was certain that on November 1, 1961, when asked whether he would make a recommendation his “answer was no, if the defendant wished to plead guilty he could plead guilty as charged and what the court sentenced the defendant was not on the recommendation of the prosecuting attorney.” He further stated that he had no conversation with the defendant or with his mother or sisters after defendant had counsel.

At the conclusion of the hearing on the motion the trial court found: (1) the “defendant did not enter his plea of guilty because of fraud and collusion, apprehension and lack of representation by counsel;”' (2) there was “no collusion or agreement between counsel for defendant and counsel for the State either prior to or at the time defendant entered his plea of guilty and was sentenced by the court; ” (3) at no time was defendant under duress and led to believe by counsel for the state or counsel for the defendant that if he would enter a plea of guilty, because of his youth and because he had no felony record he would receive a five year sentence; (4) defendant was not led to believe by his counsel that he had no defense and there were no mitigating circumstances surrounding such offense; (5) defendant’s decision to enter a plea of guilty “was intelligently made and such plea of guilty was entered by defendant after consultation with members of his family and with fully competent counsel; ” and (6) defendant entered his plea of guilty “freely, intelligently and voluntarily and that any ‘confession’ theretofore given by the defendant was not taken into account by the judge of this court either on the question of accepting such plea of guilty or in determining the sentence imposed.”

Rule 25.04 provides that “The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.” In State v. Blaylock, Mo., 394 S.W.2d 364, and State v. Arnold, Mo., 419 S.W.2d 59, this court has emphasized that the trial court is not relieved of this duty even though the accused is represented by counsel of his choice. Rule 25.04 contemplates that before accepting a plea of guilty the court shall “ ‘thoroughly investigate the circumstances under which it is made.’” State v. Williams, Mo., 361 S.W.2d 772. For example, see the thorough examinations made by the court in State v. Williams, Mo., 391 S.W.2d 227, and in State v. Harris, Mo., 382 S.W.2d 642.

We are of the opinion that the investigation shown by the record to have been made by the trial court in this case prior to its announcement that it was accepting defendant’s plea of guilty was not as broad and inclusive as contemplated by Rule 25.04. After the trial court was informed that defendant desired to change his plea from not guilty to guilty, only four questions were asked defendant. There was no explanation by the court of the charge to which defendant entered his plea or of the authorized range of punishment, and there was no determination that defendant’s counsel had explained these matters to him, and if so, that defendant understood them. The prosecuting attorney was not asked to, and did not, advise the court of the State’s version of the facts constituting the basis for the charge, and there was no determination by the court that those facts were admitted by the defendant, and if true that they authorized a conviction of the crime charged. See State v. Blaylock, supra, and State v. Arnold, supra.

We are of the opinion, however, that a subsequent disclosure that the record does not demonstrate a substantial compliance with Rule 25.04 at the time the plea was accepted does not necessarily require, upon application by defendant, that the plea of guilty be set aside. A defendant may not by reason of Rule 27.25 withdraw his plea of guilty as a matter of right. State v. Skaggs, Mo., 248 S.W.2d 635, 636. As stated in State v. Parker, Mo., 413 S.W.2d 489, “The procedure provided by our Criminal Rule 27.25 is appropriate only in extraordinary cases; after sentence, it is available only ‘to correct manifest injustice.’ ” An application made pursuant to Rule 27.25 after the imposition of sentence to withdraw a plea of guilty is necessarily an attack on the validity of that sentence within the meaning of Rule 27.26, and the procedure to be followed is set forth in that rule as amended and effective September 1, 1967. While defendant’s motion was filed prior to the effective date of the amended rule, a full hearing with counsel was held and the trial court entered its findings of fact and conclusions of law. When seeking to withdraw a plea of guilty after sentence, and thereby have that sentence set aside, the defendant has the burden to prove by a preponderance of the evidence (Rule 27.26 (f)) the facts alleged in his motion which demonstrate that manifest injustice resulted from the acceptance of his plea of guilty. Rule 27.25. The issues before the trial court at the hearing on the motion, notwithstanding the failure of the record to show a determination prior to the acceptance of the plea as contemplated by Rule 25.04, are whether defendant’s plea of guilty was in fact involuntarily made or whether it was made without an understanding of the nature of the charge. If neither of these circumstances is found to have existed no manifest injustice could have resulted from the acceptance of the plea. In the determination of these fact issues the trial court is necessarily clothed with that discretion exercised by a trial court when, acting as the trier of facts, and on appeal' the review is limited to a “determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j).

Notwithstanding the numerous allegations made in his motion, the only contentions presented by defendant on this appeal are that the trial court erred and abused its discretion in denying the motion to withdraw his plea of guilty and to vacate the sentence because (1) “at the time of said guilty plea the court failed to properly inquire as to the voluntariness of such plea,” and (2) the plea of guilty “was entered because of promises or misapprehension that [defendant] would receive a sentence of only five years imprisonment.” By so limiting the contentions on appeal the defendant has abandoned the other allegations in his motion as a basis for the relief requested. For the reasons previously noted, we agree that the record does not show strict compliance with Rule 25.04, but we are also of the opinion that this deficiency does not require the plea of guilty to be set aside upon subsequent application unless it be established by a preponderance of the evidence that defendant’s plea of guilty was entered involuntarily or without an understanding of the nature of the charge for some reason asserted by defendant in his motion.

After a full hearing, at which the trial court heard the testimony and had the opportunity to observe the witnesses, it found that defendant was not induced to enter a plea of guilty by reason of promises by defense counsel or the prosecuting attorney, and that defendant intelligently made his plea after consultation with his family and with his “fully competent counsel.” The issue before us on this appeal, as previously noted, is to determine whether such findings by the trial court are clearly erroneous.

Prior to the time he entered his plea of guilty defendant may have had or heard some conversation about a recommendation of five years on the part of the prosecutor. However, he, his mother, and his sisters were expressly told prior to his entering his plea that the prosecutor would make no recommendation. At the time his plea was offered to the trial court he affirmatively stated that he knew he was entitled to a trial by jury. He also heard the prosecutor decline to make a recommendation as to punishment, and he heard the trial court order a presentence investigation which meant to any person of reasonable intelligence that at that time the trial court had not determined the punishment. Defendant’s evidence to the effect that he was told by his counsel and by the prosecutor that they had talked to the trial court and that he would receive a sentence of five years was expressly contradicted and denied by his counsel and by the prosecutor, and is not convincing to us, as it was not to the trial court.

It may be true that defendant’s counsel had counseled him to plead guilty, but there is nothing in the record which even tends to indicate that under the circumstances this was not good advice in view of the fact that defendant had refused to cooperate with his counsel pertaining to his defense, if any, and he had assumed a smartalecky attitude toward his counsel, the court, and the court proceedings. Defendant’s counsel expressly testified that he did not tell the defendant that upon a plea of guilty the court would sentence him to only five years, which would have been the minimum, and the prosecuting attorney testified that he had no conversation with defendant, or the members of his family, after defendant obtained counsel. The issue at the hearing became primarily one of who the trial court should believe, and in view of all the circumstances, it cannot reasonably be said on this appeal that the finding by the trial court was clearly erroneous.

The judgment is affirmed.

BARRETT, C., concurs in result.

PRITCHARD, C., concurs.

PER CURIAM.

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

All of the Judges concur.