author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Robert HIMMELMANN, Appellant.
    No. 51277.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Ben J. Martin, Sp. Asst. Atty. Gen., Springfield, for respondent.
    Stewart & Bruntrager, Raymond A. Bruntrager, St. Louis, for appellant.
   HIGGINS, Commissioner.

Robert Himmelmann was convicted of assault with intent to do great bodily harm, a felony, and the jury assessed his punishment at 2-years’ imprisonment. Sections 559.190 and 556.020, V.A.M.S. Sentence and judgment followed and he has appealed.

On February 5, 1964, at about 11 P.M., Probationary Patrolman R. J. Hollowell, Jr., was on duty with the St. Louis Metropolitan Police Department. He was in uniform and operating a police scout car in which he gave chase to a Volkswagen automobile driven by defendant. Defendant stopped his automobile on St. Louis Avenue and Patrolman Hollowell stopped his scout car ten to twelve feet to the rear of defendant. Patrolman Hollowell went forward to defendant’s car and informed defendant that he was going to issue a summons to him for speeding. He obtained defendant’s operator’s license and returned to the scout car. Defendant got out and walked back to the scout car and asked that he not be given a ticket. During the course of the discussion, defendant “swung through the open window” and struck Patrolman Hollowell on the left temple with his fist. Patrolman Hollowell was then seated under the wheel in the front seat of the scout car writing the summons and defendant was standing at the door of the car. Further struggle followed during which additional blows were struck by defendant and both men went across the front seat of the scout car and out the door on the passenger’s side to the ground where the assault continued. Hollowell stated that he tried to free his handcuffs and upon hearing a snap sound, saw that defendant was trying to pull the officer’s revolver from its holster. Patrolman Hollo-well tried to get his gun from the defendant and, while defendant’s hand was on the revolver, pulled the trigger. Upon the discharge defendant released the revolver and Patrolman Hollowell shot three more times. These shots struck defendant causing him to be hospitalized. The blows struck by defendant caused Patrolman Hollowell to suffer bruises and lacerations of his head and face, undisplaced fractures of his nose, and impairment of consciousness as indicative of cerebral concussion. His left eye was blackened and swollen, one tooth was chipped and the filling dislodged in another, and the lip lacerations required repair with silk sutures. These injuries required 15-days’ hospitalization. Defendant was 39 years old, 5 feet 6 inches in height, and weighed 150 pounds; Patrolman Hollowell was 26, five feet ten and one-half inches, 150 pounds.

Appellant contends that the circumstances of this case do not support a case of felonious assault as submitted by Instruction 2; that a court-martial conviction for murder is not a criminal offense for purposes of an attack on defendant’s credibility, and that the admission into evidence of Exhibit 4, a photograph which shows a bottle of liquor in defendant’s car, was prejudicial error.

We have determined that the conviction must be reversed and the cause remanded because of the admission into evidence of Exhibit 4; however, since the other questions will probably recur in the event of retrial, we discuss them here.

In support of his first contention, appellant argues that the court erred in submitting an issue of felonious assault because the evidence shows him to be guilty of no more than a common assault. He also argues that there was no “ferocious brutality” indicated. In support of his arguments appellant points to the absence of a weapon and the lack of disparity in the size of assailant and victim.

In State v. Rose, Mo., 346 S.W.2d 54, 56 [2-4], we held that in a prosecution for felonious assault with intent to do great bodily harm itnder Section 559.190, supra, “The State was merely required to show an unlawful assault, with intent * * * to do great bodily harm,” and that such a charge was properly submitted to the jury by an instruction which hypothesized an assault with fists as did Instruction 2 here. (The jury was also instructed on common assault.) The circumstances of that case were similar in that the defendant failed in an attempted knife slash after which he shoved his victim against a car and struck him repeatedly with his fists, causing the victim to suffer a broken jawbone, bleeding at the mouth and nose, swollen face, and rib injury. See also State v. Gillespie, Mo., 366 S.W.2d 677, and State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660, in which aggravated assaults with fists were held to constitute felonious assaults even under Section 559.180, V.A.M.S. (felonious assaults with malice aforethought). The evidence here is undisputed that defendant intended the assault by striking the first blow; he struck it when he had the advantage of standing above his seated victim who was unaware that he was going to be beaten, and he pursued his advantage into, across, and outside the opposite side of the car. There is no evidence of provocation or justification which might render this assault lawful. The evidence shows that the victim received serious bodily injuries requiring hospitalization. Where such matters exist, a jury may properly find an assault with intent to do great bodily harm.

Appellant cites State v. Rongey, Mo., 231 S.W. 609, which is not in point because it holds only that where the information charges an ¿ssault with a dangerous and deadly weapon it is error to authorize the jury to convict where the injuries were shown to have been inflicted solely with fists and without any instrument.

Appellant’s second contention arises from testimony elicited over objection from defendant upon his cross-examination:

“Q (Mr. Fredericks) Mr. Himmel-mann, on May 18, 1945, were you convicted of the offense of murder and sentenced to serve life imprisonment at the United States Penitentiary at Lewisburg, Pennsylvania ?
“MR. BRUNTRAGER: I object to the form of the question, Your Honor, and of course the substance, for grounds previously stated.
“THE COURT: Be overruled.
“Q (Mr. Fredericks) Were you, sir?
A No, sir, not in ’45.
“Q What year was that? A ’44.
“Q 1944? A Yes, sir.”

This testimony followed a lengthy discussion between the court and counsel in which the conviction and sentence were identified as having occurred in a military court-martial, and appellant contends that it was error to permit this attack on his credibility “because a conviction by court martial is not a criminal offense in contemplation of V.A.M.S. 491.050.” This point has not been ruled before in Missouri.

Section 491.050 supra provides: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.” The statute is to be strictly construed in determining whether a defendant has committed a criminal offense within the meaning of the statute, State v. Rumfelt, Mo., 258 S.W.2d 619, 620[3], and must be construed with Section 556.010, V. A.M.S., Myles v. St. Louis Public Service Co., Mo.App., 52 S.W.2d 595, 597[1, 2]. Section 556.010 supra provides: “The terms * * * ‘criminal offense,’ when used in this or any other statute, shall be construed to mean any offense, as well misdemeanor as felony, for which any punishment by imprisonment or fine, or both, may by law be inflicted,” and by Section 556.020, V. A.M.S., “The term ‘felony,’ when used in this or any other statute, shall be construed to mean any offense for which the offender, on conviction, is liable by law to be punished with death or imprisonment in a correctional institution of the state department of corrections and no other.” Likewise, under federal law, “Persons convicted of offenses against the United States or by courts-martial and sentenced to terms of imprisonment of more than one year may be confined in any United States penitentiary,” Title 18 U.S.C.A. § 4083, and “Any offense punishable by death or imprisonment for a term exceeding one year is a felony,” Title 18 U.S.C.A. § 1.

In Erving v. State, 174 Neb. 90, 116 N.W. 2d 7, certiorari denied 375 U.S. 876, 84 S.Ct. 151, 11 L.Ed.2d 121, defendant was on trial for murder and he contended that receipt of his conviction by court-martial for desertion for purpose of his impeachment was error. The Nebraska statute, Section 29-102, R.R.S.1943 (similar to our Section 556.020 supra), says that “ ‘felony’ signifies such an offense as may be punished with death or imprisonment in the penitentiary,” and that provision was construed along with Title 18 U.S.C.A. § 1, supra, in concluding that “a conviction by a court-martial is a conviction for a felony within the Nebraska definition if the offense for which the conviction is had may be punished by imprisonment in a penitentiary.” 116 N.W.2d l.c. 15 [14],

Article 92, Articles of War 1928, in effect at the time of appellant’s court-martial conviction, provided:

“Any person subject to military law who commits murder * * * shall suffer death or imprisonment for life, as a court-martial may direct; * * (For later and current provision, see Title 10 U.S.C.A., § 918, Chap. 47, Uniform Code of Military Justice.)

By this provision appellant’s court-martial conviction for murder brought on the imposition of a life sentence which made the offense a felony under Title 18 U.S.C.A. § 1, supra; that section defines “felony” in virtually the same terms as our Section 556.020, supra, and a felony is a criminal offense within the meaning of Sections 556.010 and 491.050, supra, all of which leads to our conclusion that evidence of appellant’s court-martial conviction for murder was properly received for purposes of impeaching defendant under Section 491.050, supra.

In addition to the Nebraska decision, our conclusion is supported by Jordan v. State, 141 Ark. 504, 217 S.W. 788, and Nelson v. State, 35 Ala.App. 179, 44 So.2d 802, holding convictions by court-martial for desertion may be used to impeach.

Appellant cites People v. Flynn, 275 App. Div. 350, 89 N.Y.S.2d 28, where a conviction was reversed because the defendant was cross-examined about a court-martial for assault. That court said only that “it was proper to ask him concerning any specific acts in his career that would tend to discredit him or impeach his moral character. But such military offenses as A.W.O.L. were not per se proof of such and the military court martial convictions admitted by Sullivan (Flynn’s codefendant) for fighting or ‘assaults’ were not within contemplation of the law ‘crimes.’ ” Our conclusion is not in conflict with that case because we have demonstrated that the crime of murder for which defendant was convicted by court-martial is a “crime” or criminal offense within the meaning of Missouri law. Likewise, appellant’s citation of Henderson v. United States, 6 Cir., 202 F.2d 400, is not in conflict with our ruling because it holds only that cross-examination in such circumstances should be limited to conviction for felonies or crimes involving moral turpitude, situations which are well within our demonstration; and Grigsby v. Commonwealth, 299 Ky. 721, 187 S.W.2d 259, 159 A.L.R. 196, is not in point because it involved a cross-examination respecting a court-martial charge as opposed to a conviction, which evidence is clearly inadmissible in Missouri. State v. Rumfelt, supra.

Exhibit 4 is a photograph of the interior of appellant’s Volkswagen automobile taken from the right side with the door open, and it features a less-than-full bottle of DeKuyper brandy lying on the passenger’s seat. It was admitted and passed to the jury over objection, for which error this cause must be reversed.

This case is one of an assault which took place at, in, and alongside the victim’s car which was parked several feet to the rear of appellant’s Volkswagen. No part of the offense arose or occurred at or in the Volkswagen, and there is no evidence of, or reference to, liquor, drinking, or intoxication as a circumstance of the assault. Exhibit 1 showed the relation of the victim’s scout car to the rear of the Volkswagen; Exhibit 2 showed the scout car and its interior from the left side; and Exhibit 3 showed the same from the right side. Under these circumstances Exhibit 4 was not relevant on the issue of assault and its receipt thus violated the rules of relevancy which apply to photographs as well as to other forms of evidence. State v. Floyd, Mo., 360 S.W.2d 630, 633. Being irrelevant, it did not tend to prove or disprove any issue in the case and, at the trial, the State did not justify the exhibit except to say that “ * * * the appearance of the bottle speaks for itself and I think it goes to the weight of the evidence * * This is not a claim that the bottle of liquor had any connection with the offense for which appellant was being tried, and the receipt of it in evidence, under the circumstances, was prejudicially erroneous. State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 141-2[7]; State v. Floyd, supra, 360 S.W.2d 1. c. 633 [3]; Gignoux v. St. Louis Public Service Co., Mo.App., 180 S.W.2d 784, 786[1].

Accordingly, for the error indicated, the judgment is reversed and the cause remanded for a new trial.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. William K. KIESLING, Appellant.
    No. 51545.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, James T. O’Brien, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Vincent Tyndall, Springfield, for appellant.
   WELBORN, Commissioner.

William K. Kiesling appeals from a judgment and sentence of the Greene County Circuit Court imposing concurrent 2-year sentences on charges of burglary of premises occupied by Mulhollan Furniture Company and stealing therefrom a corporate seal. The sentences were entered upon a finding of guilt by the court at a jury-waived trial.

At approximately 1:45 a. m., December 23, 1964, Officer Hobson of the Springfield Police Department received a radio report that a man with a bleeding hand had exchanged a substantial amount of change for bills at the Downtown Pancake House. Proceeding to that vicinity, the officer noticed appellant on the front steps of the YMCA, a block or two from the Pancake House. According to the officer, appellant’s right hand was bandaged and in his left hand he was carrying an instrument which appeared to be a notary public seal. The officer called appellant to the police car and inquired about his activities. Appellant told the officer that he had injured his hand earlier in the evening in an automobile accident, but the officer did not consider the explanation credible. Appellant told the officer that he had exchanged change for bills at the Pancake House. He also told the officer that he had found the seal in a trash barrel. The officer then directed appellant to turn around and place his hands on the top of the police car. Appellant did so, placing the seal on top of the car. The officer began to search appellant and found a steel tape measure with the name of a furniture company on it and a letter opener. Appellant offered objection to the officer’s action and the officer placed handcuffs on the appellant and continued the search, finding a billfold containing forty-four or forty-five dollars in currency. The officer told appellant to get into the police car, removed the seal from the police car top and took appellant to headquarters.

At approximately 3:20 a. m., another Springfield police officer found that the glass in the front door of the Mulhollan Furniture Store had been broken and that there was blood on the sidewalk. He called John Kelley, manager and vice-president of Mulhollan, to the scene. Mr. Kelley unlocked the door and entered the building. He found that the office had been ransacked and that some thirty-five or forty dollars were missing from the petty cash drawer and a container in which a lunch fund was kept. He also discovered the absence of the corporate seal. The seal taken by Officer Hobson from appellant was found to be the furniture company’s corporate seal.

The next morning appellant admitted to Springfield police officers that he had broken the glass in the front door of the Mulhollan Furniture Store and entered the building through the resulting opening. He stated that he could find no money, but that he took a seal.

Appellant was charged in a single count information (§ 560.110, RSMo 1959, V.A. M.S.) with second degree burglary and stealing in connection therewith of the corporate seal. On behalf of appellant, a motion to suppress the use in evidence of the items taken at the time of his arrest was filed, alleging that such items had been taken from his person by means of an unlawful search and seizure, in violation of rights under § 15 of Article I of the Constitution of Missouri, 1945, V.A.M.S., and the Fourteenth Amendment to the Constitution of the United States. After a hearing at which appellant and Officer Hobson testified, the court overruled the motion to suppress. Again, when the case was called for trial, the motion to suppress was renewed and a preliminary hearing on that issue at which the officer again testified was held and the motion overruled.

Appellant has filed no brief on this appeal. We therefore look to his motion for new trial and consider matters there properly preserved for review. Criminal Rule 27.20, V.A.M.R. See also Criminal Rule 28.02, V.A.M.R. Appellant’s three assignments of error in his motion for new trial are all related to his claim that the items taken from him by Officer Hobson were obtained by an unlawful search and seizure in violation of the above-mentioned constitutional provisions. He assails the action of the trial court in overruling his pre-trial motion to suppress, in overruling the same motion at trial and in failing to sustain his objection to the evidence and testimony relating to the objects taken from him by Officer Hobson.

The appellant’s motion for new trial does not directly challenge the validity of his arrest. Presumably his allegation of violation of his constitutional protection against unreasonable search and seizure is premised on the theory that his arrest was illegal and he thereby seeks to avoid the application of the rule that a reasonable search without a warrant of the person of an individual lawfully arrested is not violative of constitutional provisions. State v. Brown, Mo.Sup., 386 S.W.2d 390; State v. Durham, Mo.Sup., 386 S.W.2d 360; State v. Schaffer, Mo.Sup., 383 S.W.2d 698; State v. Napper, Mo., 381 S.W.2d 789; State v. Phelps, Mo.Sup., 384 S.W. 2d 616, 619 [2].

However, on the record here before us, there is no necessity for passing upon the validity of the arrest, or the constitutional question which appellant attempted to state in his motion for a new trial.

Appellant made no objection to oral testimony at the trial concerning the tape measure, letter opener and currency found on his person (these objects were not physically placed in evidence). He therefore waived any objection based upon their seizure. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 886-887 [13]; State v. Egan, Mo.App., 272 S.W.2d 719, 722-723 [3-5], Nor can he now assert error in admitting testimony concerning these objects. State v. Johnson, Mo.Sup., 347 S.W.2d 220, 223 [6]; State v. Edmonds, Mo.Sup., 347 S.W.2d 158, 163 [11-13].

The only objection at trial was to evidence pertaining to the corporate seal. The trial court could have found from the officer’s testimony that such item was not the product of a search and seizure, but that the officer merely took it from the top of the police car after appellant had placed it there. Therefore, no search within the constitutional protection was involved. State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551, 553 [6-9]; State v. Camper, Mo.Sup., 353 S.W.2d 676, 679 [5, 6]; State v. Campbell, Mo.Sup., 262 S.W.2d 5, 8 [8].

We find no error in the matters raised by appellant’s motion for new trial. We have also examined the matters of record as Criminal Rules 28.02 and 28.08, V.A.M.R., require and find them sufficient.

The judgment is affirmed.

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: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. James Beard HODGE, Appellant.
    No. 51180.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, William A. R. Dalton, Sp. Asst. Atty. Gen., Springfield, for respondent.
    Wyvetter H. Younge, St. Louis, for appellant.
   BARRETT, Commissioner.

The appellant James Beard Hodge, with prior felony convictions, including a federal narcotics conviction (RSMo 1959, § 195.200(1) (5), V.A.M.S.), has been found guilty of possession of heroin, a narcotic drug, and sentenced to ten years’ imprisonment. After alleging the prior convictions (RSMo 1959, § 556.280, V.A.M.S.), the information alleged, in the language of the statute (RSMo 1959, § 195.020, V.A.M.S.) a violation in that on March 13, 1964, the appellant “did then and there unlawfully and feloniously have in his possession and under his control, a certain quantity of a narcotic drug, to wit: sixteen capsules of Heroin, of the total weight of 1.16 grams.” State v. Virdure, Mo., 371 S.W.2d 196, 198; State v. Worley, Mo., 375 S.W.2d 44, 47.

The proof in support of the charge was that at 2:20 in the morning of March 13 police officers Homann and Zelle were patrolling the Sarah Avenue and Enright Street areas. They were proceeding south on Sarah when they “observed a man walking north on the west side of Sarah towards us, and he was acting suspiciously; he was very nervous; he was looking around, and we pulled up and stopped him, and when we got out of the car — we were in an unmarked car — he realized we were (uniformed) police officers, and threw a small bottle that he was holding in his right hand away.” Homann said that as they pulled to the curb “he was seen with his right hand to drop an object to the sidewalk.” Homann picked up the “brown-colored bottle consisting of sixteen white capsules with a white powder substance in same” and, suspecting that the bottle contained narcotics, the officers arrested the defendant. He admitted dropping the bottle but said he did not “know what the contents of the capsules was.” One of the officers took the bottle and its contents to the police laboratory and remained until a chemist analyzed the powder and informed the officer that it was in fact heroin. The technician who examined the capsules testified that all sixteen contained heroin with a total weight of 1.16 grams or 1160 milligrams.

While proof establishing constructive possession of the narcotic drug is sufficient (State v. Worley, Mo., 375 S.W.2d 44, 47), the circumstances adduced here are almost identical with the facts and circumstances in State v. Owens, Mo., 391 S.W.2d 248, and needless to say sustain the jury’s finding of the appellant’s guilt. One of the appellant’s seven assignments of error is that the jury verdict is against the weight of the evidence in that the state failed to “prove that the Defendant had possession of the narcotic drug” but the weight of the evidence is not an open question in this court. State v. Perkins, Mo., 382 S.W.2d 701, 703.

Another of the assignments is that “the errors committed by the Court as alleged in paragraphs 1, 2, 3, 4, and 5 were so highly prejudicial as to deprive the Defendant of a fair trial as guaranteed by Article I, Section 18(a) and Article I, Section 10 of the Missouri Constitution [V.A. M.S.], and Article VI and Article XIV of the Constitution of the United States of America.” While the five individual specifications are sufficient in and of themselves as to their specific subject matter, this particular assignment is so lacking in detailed particularity and specification of grounds or causes (Criminal Rule 27.20(a), V.A.M.R.) that it does not present a reviewable question, it certainly does not raise or present any question of constitutional law or of the infringement of constitutional rights.

Two of the specific assignments of error have to do with the appellant’s exercise of his right not to testify. RSMo 1959, § 546.270 V.A.M.S.; Criminal Rule 26.08. In one assignment it is asserted that the court erred in failing to instruct the jury that no inference was to be drawn from his failure to testify or that his failure to testify “shall not be construed to affect the innocence or guilt of the accused.” In the other assignment it is urged that in violation of the rule and the statute the prosecuting attorney in his argument “referred” to his failure to “testify” and that, therefore, he is entitled to a new trial. Criminal Rule 26.08; RSMo 1959, § 546.-270, V.A.M.S. As to the first assignment it is not necessary to consider the rationale of the rule in detail, it is sufficient to say that the mere refusal of such an instruction is not in and of itself prejudicial error. State v. Perkins, Mo., 382 S.W.2d 1. c. 707; State v. West, Mo., 356 S.W.2d 880, 882. In addition to the usual analysis and reasons given in considering alleged violations of the rule and the statute (State v. Conway, 348 Mo. 580, 585-589, 154 S.W.2d 128, 132-134; State v. Kennedy, Mo., 396 S. W.2d 595, 598-599) it may be observed in passing that the rule and the statute not only prohibit “any attorney in the case” from referring to the defendant’s failure to testify, the fact may not “be considered by the court or jury before whom the trial takes place” (Criminal Rule 26.08; RSMo 1959, § 546.270, V.A.M.S.) and it is not readily apparent in view of this prohibition just how the court could properly instruct the jury on the subject.

The specific language complained of is contained in this portion of the prosecutor’s closing argument: “The State has brought you three witnesses whose testimony you had an opportunity to observe, whose demeanor on the stand you had an opportunity to observe, whose truthfulness, whose honesty you had an opportunity to observe, and a chemist whose experience has been explained to you, whose background has been explained to you. The State has brought you a case that is complete and overwhelming amount of evidence to prove not only beyond a reasonable doubt, not a shadow of doubt but without any doubt that James Beard Hodge on the street was in possession of this heroin. And at the close of the State’s case the defendant had an opportunity to present any evidence that they wanted to show, and none was forthcoming, and on the basis of the evidence you must base your verdict, and I say your verdict must be guilty. Thank you.” In this connection it must be noted that not only did the appellant not testify he called no witnesses and of course offered no evidence. Again upon this record and assignment of error it is not necessary to consider the subject in detail, the emphasized sentence is a paraphrase of the language employed in State v. Hayzlett, Mo., 265 S.W.2d 321, and State v. Michael, Mo., 361 S.W.2d 664, and certainly in its context is not an infringement of the rule and statute. State v. McCleave, Mo., 256 S.W. 814; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660; State v. Janes, 318 Mo. 525, 1 S.W.2d 137.

There is no objection to the principal instruction which as with the information submitted in the language of the statute the defendant’s guilt or innocence of the offense of possession of narcotics. But in connection with the principal offense and consideration of the case as a whole the jury was told that in determining the essential fact of possession it could consider all the facts and circumstances, that it was not necessary to prove intent, also reasonable doubt was instructed upon, and finally in a separate paragraph of a single sentence the jury was told that the only issue submitted for its finding was whether “the defendant is guilty or not guilty” of the charge of possession of narcotics. The sentence concluded by saying that if the jury found the defendant guilty “you will not fix or assess any punishment for any guilt.” While the drug regulations act (Chapter 195, RSMo 1959, V.A.M.S.), as a matter of fact the Uniform Narcotic Drug Act, prescribes different penalties for multiple convictions (RSMo 1959, § 195.200, V. A.M.S.), the appellant in this instance was proceeded against as a second offender (R SMo 1959, § 556.280, V.A.M.S.), the so-called habitual criminal law, and of course if that statute is applicable and the prior conviction found, the court, upon a jury verdict of guilt of the principal offense, not the jury fixes the punishment and the language quoted from Instruction 3 was designed to cover this particular subject. Juries in other cases have been advised of this matter in other instructions, sometimes in the principal instruction (State v. Hadley, Mo., 364 S.W.2d 514, 518), and sometimes elsewhere. There is no particularly required place or formula and it is not necessary to here attempt one, it is sufficient to say that the instruction given in other cases would appear to be preferable in both form and substance to the paragraph quoted from Instruction 3. See for example: State v. Hadley, Mo., 364 S.W.2d 514, 518, and State v. Newman, Mo., 391 S.W.2d 207, 210.

But the problem here is whether for the reason assigned, that it is ambiguous in that the only issue submitted was “guilty or not guilty” of illegal possession of a narcotic drug, the instruction is prejudicially erroneous. The appellant does not point out just what the other issues were or precisely what he means by the assignment, nevertheless it has heretofore been held that a comparable submission was not misleading and did not place undue emphasis upon the word “guilty.” State v. Hadley, supra. And here, as indicated, the purpose of the instruction was to inform the jury, as they must be informed under the second offender law, that they were only concerned with a finding of guilt or innocence and were not concerned with the fixing of punishment. While this particular form of instruction is not recommended it is not manifestly and prejudicially erroneous for the particular reasons urged in this motion for a new trial.

Instruction 6 is one of the standard, formal, precautionary instructions on the subject of presumption of innocence, credibility of witnesses and reasonable doubt. The appellant’s fourth assignment of error is that in connection with the presumption and reasonable doubt the instruction contains the language “to your satisfaction and beyond a reasonable doubt.” It is urged that in employing this language the court “instructed the jury contrary to the law of the State of Missouri” and that “the Court erred in instructing the jury that the standard of the Burden of proof was to the jury’s satisfaction in conjunction with a presumption of innocence.” The meaning of this assignment is not entirely clear, if it means that the quoted language has the effect of destroying or conflicting with the “presumption of innocence” as set forth in the instruction, the court in State v. Caffey, Mo., 365 S.W.2d 607, 612, had this to say: “The phrase ‘to your satisfaction’ is used in the conjunctive with the phrase ‘beyond a reasonable doubt’ as is also the phrase ‘to a moral certainty.’ As so used and joined they do not whittle away or minimize the defendant’s rights and the presumption of innocence to which he is entitled.” And again, as State v. Caffey points out, this is not a recommended burden of proof instruction but the problem is “whether this instruction was prejudicial to the defendant” (State v. Nerzinger, 220 Mo. 36, 49, 119 S.W. 379, 383) and up to now it has not been demonstrated that this particular language so misplaces the burden of proof as to constitute manifest prejudice and error. State v. Cheatham, Mo., 340 S.W.2d 16; State v. Gridley, Mo., 353 S.W.2d 705; State v. Pennington, Mo. App., 392 S.W.2d 5.

Instruction 8 was upon the subject of “argument of counsel” and the appellant’s fifth assignment is that the court erred in giving it “because said instruction instructed the jury that the Attorneys in the cause could show the jury how to apply the law given by the Court in this case.” Aside from its lack of detailed particularity or more appropriately its lack of demonstration of inapplicability, the instruction did not employ any language comparable to that stated in the assignment. The instruction in fact said, “The argument of counsel is for the purpose of aiding you to reach a proper verdict in the cause by refreshing in your mind the evidence which has been given to you in this cause, and by showing the application of the law thereto.” And the instruction continued by cautioning the jury “but whatever counsel may say, you will bear in mind that it is your duty to be governed in your deliberations by the evidence as you understand it and remember it to be, and by the law as given by the Court in these instructions.” The instruction was cautionary in purpose (State v. Tighe, Mo., 289 S.W. 829), it is almost identical in form and content to the one involved in State v. Farrell, 320 Mo. 319, 6 S.W.2d 857, and entirely proper in this case.

The appellant’s assignments of error are not well taken, the punishment was within the statutory limits for a second offender (RSMo 1959, §§ 195.200, 556.280, V.A.M. S.), there was allocution (Criminal Rules 27.08-27.09) and compliance with all the required formalities, there are no errors upon the record before the court (Criminal Rule 28.02) and for the reasons indicated the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Earl BOYKINS, Appellant.
    No. 51570.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Richard S. Bull, St. Louis, for appellant.
   HOUSER, Commissioner.

The first question is whether this conviction of robbery in the first degree should be invalidated under the rule of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, Gideon v. Wain wright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799, 93 A.L.R.2d 733 and United States ex rel. Russo v. New Jersey, 3 Cir., 351 F.2d 429. After his arrest appellant was interrogated by police officers. He orally confessed to them that he participated in the holdup of Hy Feigenbaum’s Market at 3501 Cass Avenue in the City of St. Louis on March 25, 1964. The police officers testified to the statements he made. Appellant claims violation of his right to obtain and consult with counsel prior to his confession, under the Sixth and Fourteenth Amendments to the Constitution of the United States.

Acting on information that Earl Boykins and John Hall had been involved in the holdup, two officers went to the West End Hotel, where Boykins and Hall lived. They were found in the saloon or lounge, seated in a booth with two females, Mattie Moore and Tommy Gunn. The officers stated to the men that they wanted to talk to them and requested them to step outside. Acting on the belief that the two men had something to do with the holdup in question the officers arrested them. They were arrested outside the hotel and placed in a police car. Ten minutes later the officers re-entered the hotel and arrested the two females. This occurred about 3:30 p. m. on March 30, 1964. All four were taken to the police station and booked. On the way to the police station the four were asked who their associates were. All four suspects were interrogated. At times they were questioned individually, at times collectively. Different officers interrogated them at different times. At the outset Earl Boykins was very briefly interrogated about the robbery. At first he positively denied any knowledge of or participation in any robberies or holdups whatever. Tommy Gunn confessed first. She said, among other things, that Earl Boykins’- gun was at the hotel. She led officers to a .32 calibre S. & S. automatic revolver at the hotel. Earl Boykins had “passed” the revolver to Mattie Moore when the officers entered the hotel bar. After the officers and the two men stepped outside the hotel Mattie Moore “got rid” of the gun by wrapping it in some carpeting and leaving it on a table on the landing adjacent to the women’s lavatory at the hotel. The revolver, together with seven shells and a cartridge clip, was recovered at 6:30 or 7:30 p. m. on March 30, 1964. The owner of the market at 3501 Cass, Hyman Feigenbaum, the victim of the robbery, was brought to the police station. He identified the revolver as the one he kept at the market and as the revolver taken from the market during the holdup. Hall then confessed. Finally, confronted with the gun, and having been told by the other three that they had confessed, Earl Boykins made his statement, detailing the facts which showed all four guilty of armed robbery on the occasion in question. His confession was made at 7:30 or 8 p. m. on March 30, 1964. After Boykins confessed to the officers the assistant circuit attorney appeared and took a further statement from him. After the initial denial by Earl Boykins and before he gave his first incriminating statement the officers advised him of his rights. An assistant circuit attorney also advised him “at great length” of his rights to obtain counsel and consult with a friend or say nothing if he chose. He was told that he did not have to make any statement if he didn’t want to “and several other things were mentioned to him along the same lines.” He was “fully advised of all .of his constitutional rights.” The officers testified that no threats, force or promises were used in obtaining the statement from Earl Boykins.

Appellant contends that he was interrogated at a time when the investigation was no longer “a general inquiry into an unsolved crime but had begun to focus on a particular suspect,” namely, this appellant, as shown by the fact that he had been arrested for the very purpose of investigation of his connection with the crime; that there were two interrogations: the first by police officers, the second by the assistant circuit attorney — that while he was informed of his right to obtain counsel before the second interrogation he was not informed of his rights prior to the start of his first interrogation. Appellant cites Gideon and Escobedo and quotes from Russo, and dbjects that the testimony showing that he was informed of his rights consisted of bare conclusions; that there was no specific testimony reciting what was actually said to appellant.

Appellant’s rights were not violated but on the contrary were fully protected. Under the uncontradicted evidence Boykins was advised of his constitutional rights before he gave the incriminating statements. He was told that he had a right to obtain counsel, consult with a friend or remain silent and say nothing, if he so chose. Notwithstanding he was given this advice before he said anything implicating himself he talked and confessed without consulting friend or attorney. His incriminating statements were not made as a result of threats, force or promises. There is not the slightest intimation of physical or mental coercion.

We are of the opinion that in post-arrest proceedings, although the inquiry has focused upon a particular individual, incriminating statements made by him to the police may be used at the trial of charges later filed against him, where before he incriminates himself he is fully informed of his constitutional rights, of his right to counsel and to consult with a friend or to remain silent, and where no mental or physical coercion is employed.

Escobedo, Gideon and Russo are not in point. Escobedo had a lawyer whom he had employed before he was questioned. When arrested and interrogated he asked to be allowed to consult with his counsel. The lawyer, standing by at the place of the questioning, requested leave to consult with his client. Both requests were denied. Escobedo was not advised of his right to remain silent. During the interrogation he was handcuffed, required to stand, and he was nervous, upset, and agitated. He had not slept for over a week. Escobedo was coerced. Escobedo presents an aggravated situation altogether different from that of Boykins. Under the facts in Gideon the defendant was held entitled to the assistance of defense counsel at the trial. That question does not arise in Boykins’ case. This record shows that Cletus E. Rudolph, Esq. of the St. Louis bar appeared for Boykins, was present at all stages throughout his trial and assisted him in the post-trial proceedings. Russo held that defendants without counsel and who were not informed of their right to counsel or of their right to remain silent at the post-arrest interrogation stage were entitled to have their state convictions vacated, in the absence of an effective waiver of their rights, and that failure to request counsel does not constitute a waiver of the right to counsel. The distinguishing, difference between the facts in the Russo and Boykins cases is at once apparent.

While the testimony as to the mode and manner in which Boykins was advised of his constitutional rights is cryptic and condensed, the essential requirements clearly appear to have been met.

We reject the contention that because there were two interrogations and he was not advised of his rights before the first of the interrogations it was error to use Boykins’ statements. The first interrogation was casual, very brief and general. Boykins responded to the initial interrogation by denying any knowledge of any robberies. He made no incriminating statement whatever; gave nothing away as a result of the initial questioning. Before the second phase of the interrogation, which was specific and to the point, Boy-kins was advised of his constitutional rights. Under the facts in this case the jury was properly allowed to hear and take into consideration appellant’s incriminating statements.

The next question is whether the court erred in refusing to grant the oral requests of defendant and his attorney before the jury was sworn, for a delay or continuance of the trial. Appellant claims lack of advance notice of the trial setting, lack of time for preparation for trial, and lack of opportunity to file the written application for a continuance supported by affidavit, as provided for by Criminal Rule 25.08 and §§ 545.710, 545.720.

Appellant was indicted on April 21, 1964 and a substitute information in lieu of indictment was filed on November 13, 1964. On January 4, 1965 the case was assigned to a division of the circuit court, and on January 7 the case was continued. On February 5 the court appointed Cletus E. Rudolph as attorney for appellant and the case was ordered set for trial March 22. In the meantime appellant was ordered sent to a hospital for psychiatric examination. The case was continued to May 10 and again continued to June 1. In the published docket of criminal causes in circuit court the May 29 issue of St. Louis Daily Record listed the case for trial on June 1, at which date the case was assigned to Division 11 and called for trial. Counsel for defendant not being present, he was called by telephone at 9:20 a. m. and appeared in court 30 minutes later. The jury panel was then in the courtroom. Counsel had been unaware of the June 1 setting. He had received no actual notice of the trial date from the clerk’s office. Because he has no criminal practice his secretary does not check the minutes, proceedings and settings of criminal cases in the Daily Record. Counsel’s law office was closed on Saturday, May 29. Sunday, May 30, was Memorial Day, which was observed on Monday, May 31. He informed the court that he was not ready to go to trial on June 1 and orally requested a continuance, which was refused. Appellant and counsel conferred, and then for the first time appellant informed counsel of the existence of witnesses by whom he indicated he could establish the defense of alibi. As trial proceedings commenced but before the jury was sworn Mr. Rudolph again orally requested a continuance, stating that defendant had no prior knowledge of the setting until that morning, June 1; that defendant could have two witnesses present at his trial who would testify to facts and circumstances tending to prove that defendant was not present and did not engage in the alleged offense with which he was charged — witnesses who would testify that he was in Mississippi at the time the crime was committed. No other information was offered, such as the names and addresses of the witnesses, their availability, etc. The court denied the request and the case went to trial.

Criminal Rule 25.08 governs the matter of the granting of continuances in criminal cases. It contemplates a written application showing good cause for a continuance. If based on the absence of a witness it must give the name of the witness, show where he resides or may be, the probability of procuring his testimony and within what time, what facts the applicant believes the witness will prove, that he believes them to be true, that he-is unable to prove these facts by any other witness whose testimony can be as readily procured, that the witness is not absent by the connivance, procurement or consent of the applicant, what diligence has been used in the premises by the applicant, and that the application is not made for vexation or delay merely but to obtain substantial justice on the trial of the cause. A defendant’s application must be supported by oath or affidavit of defendant or some reputable person in his behalf.

An application for a continuance is addressed to the sound discretion of the trial judge. This Court will not interfere with the exercise of that discretion by the trial court unless it has been abused. There is no abuse of discretion. Appellant failed to comply with every single requirement of Criminal Rule 25.08. Appellant filed no written application and made no request for leave to supply the record. No showing of the names of the witnesses, their residence, their availability, what they would testify to, etc., was made. This case demonstrates woeful lack of diligence. Appellant’s tardy reference to alibi witnesses stretches credulity. His first mention of the existence of alibi witnesses occurred fourteen months after indictment, five months after the case was first set for trial, four months after his counsel was appointed, and not until the jury was in the box ready to try his case and the judge was directing the trial to proceed. He “ * * * should not wait until the very minute of trial to determine if a witness he contends to be material to his defense is available.” State v. Scott, Mo.Sup., 338 S.W.2d 873, 876. Under the applicable rule the trial court had no alternative but to overrule the application.

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

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

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:
    STATE of Missouri, Respondent, v. Paul A. CARTER, Appellant.
    No. 51696.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    Paul A. Carter, appellant 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.

The transcript shows that on January 20, 1963, defendant entered a plea of guilty to the charge of obtaining property by use of a check drawn on a bank in which he knew he had no funds, and he was sentenced to imprisonment for a term of three years.

The Attorney General has filed a motion to dismiss the appeal as moot, and has attached thereto a certified copy of an order by the Governor commuting the challenged sentence to a term ending September 4, 1965. The file indicates that defendant has thereafter been held in confinement pursuant to a sentence for a separate and different offense, and the validity of that sentence is not challenged in this proceeding.

The relief authorized by Criminal Rule 27.26 is limited to a “prisoner in custody under sentence” who (1) claims a right to be released from the custody imposed by reason of that sentence, or (2) who claims to have a right to have the sentence reduced on the ground that the sentence was in excess of the maximum authorized by law. State v. Brookshire, Mo., 377 S.W.2d 291. Defendant is not and has not since September 4, 1965, been in custody by reason of the sentence he seeks to challenge in this proceeding. By his motion he challenges the validity of the sentence and seeks to be released from the custody imposed pursuant thereto, but he has now received from the executive branch of the state everything he could receive by resorting to Criminal Rule 27.26. In this factual situation, we held in State v. Brookshire, supra, that an appeaj from an order denying a motion filed pursuant to Criminal Rule 27.26 was moot after the prisoner had been unconditionally released from the custody imposed pursuant to the challenged sentence.

In this case when the motion to dismiss the appeal was served on defendant, he requested that this court consider the merits of his challenge of the validity of the three-year sentence, and while he did not specifically express his request as we state it, the substance was that we should now consider the motion which was filed pursuant to Criminal Rule 27.26 as an application for a writ of error coram nobis. Such a request was not made in the Brookshire case. In State v. Sodulski, Mo., 298 S.W.2d 420, 424, this court held that a motion by a defendant in which he seeks relief from what he asserts to be an invalid sentence is not to be determined by the name given to it, but rather upon the facts alleged and the relief sought, and that “a writ of error coram nobis is available to attack a judgment of conviction, even after the sentence thereunder has been served.” It was further held that the availability of the writ of error coram nobis to challenge the validity of a sentence already served should be limited “for the cause or causes specified in Rule 27.26 and provided further that the trial court shall first examine the motion and the files and records in the case and refuse the writ (the hearing) in those cases where, from such examination, it appears that petitioner is entitled to no relief.” It appears that in this case the basis for the requested relief is for a cause specified in Criminal Rule 27.26, the trial court has examined the application for relief (whether it be denominated a motion filed pursuant to Criminal Rule 27.26 or an application for a writ of error coram nobis), and from its examination of the application and the files and records the trial court has found that defendant is not entitled to relief. On this appeal we shall consider the allegations in the motion as though contained in an application for a writ of error coram nobis, and upon the record before us determine whether the defendant is entitled to a hearing on that application.

Defendant alleged that he “was tried and sentenced without benefit of counsel,” and that “he was forced (by threats of long imprisonment) to deny his right to counsel and enter a plea of guilty.” He further alleged that the prosecuting attorney informed him that two “other charges” would be filed against him if he “failed to cooperate,” that “the total amount of all three charges would amount to approximately twenty years in confinement, but if the petitioner cooperated, the prosecutor would file only one of the charges and recommend only three years.”

Criminal Rule 29.01 provides that in every criminal prosecution in any court of this state the accused shall have the right to appear and defend the same in person and by counsel, but, “If, after being informed as to his rights, the defendant indicates his desire to proceed' without the benefit of counsel, and the court finds that he has intelligently waived his right to have counsel, the court shall have no duty to appoint counsel unless it appears to the court that, because of the gravity of the offense charged and other circumstances affecting the defendant, the failure to appoint counsel may result in injustice to the defendant.”

The record on this appeal shows that when defendant appeared before the trial court on June 20, 1963, he stated that he was 33 years of age and previously had been convicted or had pleaded guilty of two offenses; as stated by the defendant, “Once for bad checks and once for stolen property across the state line.” The trial court explained the charge against defendant, stated that it was a felony, and told the defendant the authorized punishment. The record also shows the following:

“{The Court]: Now, you are entitled to have a trial on this charge if you want it, which would include a trial by jury, where the jury would decide whether you are innocent or guilty, and fix the punishment if they find you guilty. A trial by jury is often helpful to persons charged with a crime such as this, and if you want to have a trial by jury you would be allowed all the time you need to prepare for it. You are also entitled to the services of an attorney to advise with you and represent you before you take any action in this case. You are not required to take any action today. The services of any [an?] attorney are often helpful to persons charged with a crime such as this. If you have no attorney and are unable to employ one, the Court will appoint an attorney for you if you want one. Now do you understand all that, Mr. Carter?
“A. Yes, sir.
“Q. Do you have an attorney?
“A. No, sir.
“Q. Do you want an attorney?
“A. No, sir.
“Q. Do you want to have a trial on this charge?
“A. No, sir.
“Q. Do you know now what you want to do in connection with it or do you need time to think about it?
“A. I understand that.
“Q. What do you want to do ?
“A. I will plead guilty.
“Q. You want to plead guilty at this time?
“A. Yes.”

The assistant prosecuting attorney, when asked for comments, stated that he recommended “a sentence in the penitentiary of three years.” The court then asked the defendant: “Anything you want to say about it, Mr. Carter, anything that hasn’t been mentioned or anything different to what has been said?” The defendant replied, “No, sir.” Later, the court again asked the defendant if there was “anything else you want to say,” and the defendant volunteered the statement that “I believe there’s a warrant for me in Illinois.” The court then announced that “the judgment and sentence of the court is that you be confined in custody of the department of correction for a term of three years.” In the judgment entered of record, there is the express recital that “after interrogating the defendant the court finds that the defendant is mentally capable and sufficiently informed to decide his need for counsel,” and that “failure to appoint counsel will not work injustice to the defendant.”

Since no hearing was held in the trial court we will assume for the purpose of this appeal that defendant’s allegation that the prosecuting attorney told him that if he would “cooperate” only the one charge would be filed against him instead of three separate charges. However, we note that defendant does not allege that he was thereby induced to plead guilty when he was in fact not guilty, and he does not allege that the prosecuting attorney would not have been justified in filing the other two charges against him. In fact, when he was being questioned by the trial court he was asked, “Did you write some other checks that had no money in the bank to cover them also?” and the defendant replied, “Yes, sir, I did,” and “I believe three, sir.”

A defendant may waive his right to counsel and enter a plea of guilty when he does so with an intelligent understanding of his act. State v. Glenn, Mo., 317 S.W.2d 403; State v. McDonald, Mo., 343 S.W.2d 68. Defendant does not allege facts which bring into issue his mental ability to understand what was going on, and he does not allege facts from which it could be found that the prosecuting attorney acted wrongfully in that he would have not been justified in filing two other charges against him. The allegations do not support a claim of misrepresentation as to possible punishment, or entrapment, or that the recommendation was not carried out. The contention of defendant, when reduced to its basic substance, is that he entered a plea of guilty to a charge pursuant to an understanding that the prosecuting attorney would recommend a sentence of three years and would not file charges against him for two other offenses which he had a right to do. The question before us is, if this is true, whether this results in the sentence and judgment entered pursuant to such plea being void as a denial of due process of law.

“It is true, of course, that a sentence rendered upon a truly coerced plea of guilty is subject to collateral attack * * Watts v. United States, 107 U.S. App.D.C. 367, 278 F.2d 247. In such cases the plea is involuntary because it represents a “choice” made by the defendant which was brought about by improper inducements or through ignorance on his part of his rights.

It might be said that every plea of guilty is entered pursuant to a form of “coercion,” depending upon the definition assigned to that word. In every case the defendant is entitled to plead not guilty and place upon the state the burden of proving (and convincing a jury) that he is guilty of the offense charged beyond a reasonable doubt. The defendant is faced with the choice (some might call it a dilemma) of entering a plea of guilty and taking his chances with the court as to punishment or risking a trial of the cause before a jury. Yet when the defendant is capable of understanding the situation before him and does understand it, the judgment entered pursuant to such plea of guilty certainly is not subject to collateral attack. There was no coercion or duress in the sense of being wrongful.

In State v. Freedman, Mo., 282 S.W.2d 576, the defendant contended that his plea of guilty was entered under duress and coercion because the prosecuting attorney advised him that if they went to trial he would be charged under the habitual criminal act. At that time, when a defendant was so charged, the jury determined whether a defendant had previously been convicted, and if so, the statute required the imposition of the “longest term prescribed” for the offense for which he was on trial when the authorized punishment was imprisonment for “a limited term of years.” Section 556.280 RSMo 1949 (now repealed). This court held: “While the record clearly shows that appellant was confronted with the dilemma of either entering a plea of guilty or being tried upon the charge in question before a jury, the record wholly fails to show that such alleged duress was such as would nullify the judgment and sentence entered by the court upon the plea of guilty. The compulsion under which appellant acted was neither unlawful, nor exercised for an unlawful purpose. Appellant exercised his own volition and choice with a full knowledge of the facts in entering a plea of guilty and taking his chances with the court as to punishment, rather than risking a trial of the cause before a jury.”

The case most comparable on the facts is Kent v. United States, 1 Cir., 272 F.2d 795. There the defendant sought to challenge a plea of guilty on the grounds that it was induced by coercion in that the prosecuting officials told the defendant that if trial was had, others who were friends of his would be brought to trial. That court held: “We are not prepared to say that it can be coercion to inform a defendant that someone close to him who is guilty of a crime will be brought to book if he does not plead. If a defendant elects to sacrifice himself for such motives, that is his choice, and he cannot reverse it after he is dissatisfied with his sentence, or with other subsequent developments. Cf. Brown v. United States, 5 Cir., 1953, 204 F.2d 298, 300-301, certiorari denied 1954, 346 U.S. 925, 74 S.Ct. 314, 98 L.Ed. 418. Indeed, a contrary ruling would mean that a defendant could equally say that he pleaded guilty to save himself. It is certainly not duress, if the promise is kept, for the government to say it will recommend a lighter sentence if a defendant pleads than it might recommend if he is convicted after trial. Yet, obviously, ‘fear’ of the greater sentence may induce a plea. Petitioner must show that he was subjected to threats or promises of illegitimate action. Statements that other guilty parties will be prosecuted if he does not plead are not of that description.”

As previously noted, defendant does not allege facts from which it could be found that he was told he would be charged with offenses he did not commit or that he was induced to plead guilty to an offense he did not commit. Neither does he allege facts from which it could be found that the prosecuting attorney deceived or misled him or advised him wrongfully. Defendant was 33 years of age, and had two previous convictions; one similar to the one charged against him and apparently the other was a federal offense. He was not young and inexperienced in court procedure. The trial judge advised him fully of his right to counsel, offered to appoint one, and offered to give him additional time to consider his course of action. Defendant argued his appeal pro se before this court, and by his answers to the trial court and his appearance before this court it is beyond question that he is reasonably intelligent and capable of understanding his rights under the circumstances with which he was faced. Twice the trial court asked him if he had anything to relate other than what had previously been said and twice he said he did not. We conclude that the brief allegations to the effect that he was “forced” to waive counsel and enter a plea of guilty are refuted conclusively by the files and records before the trial court for its consideration, and which we consider on our review, and that the order denying relief was properly entered without a hearing.

At the oral argument before this court defendant mentioned several matters outside of and beyond the scope of the allegations in his motion. We, of course, as an appellate court rule only on the matters presented to the trial court. However, we shall mention one matter because it goes to the sufficiency of the judgment.

Criminal Rule -27.11, V.A.M.R., provides that “Whenever a judgment upon a conviction shall be rendered in any court, the clerk of such court shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.”

The judgment entered of record in this case is in the usual form except that in “stating briefly the offense for which such conviction shall have been had,” the reference was to an offense entitled “no funds.” This, of course, was not a compliance with the above rule, and it may reasonably be assumed that there also was no compliance with that part of the rule which requires the court to inspect the entry and conform it to the facts.

The rule requires no more in the formal entry of judgment than that the offense be described “briefly.” State v. Harrison, Mo., 276 S.W.2d 222, certiorari denied 349 U.S. 948, 75 S.Ct. 877, 99 L.Ed. 1273. In addition, the omission of this duty, that is the failure to describe the offense at all, shall “in nowise affect or impair the validity of the judgment or sentence.” In State v. Hendrix, Mo., 310 S.W.2d 852, the “entry of the judgment and sentence [did] not state in accordance with Rule 27.11 the offense for which the conviction was had; * * *.” It was expressly held that the judgment was sufficient. It appears that in the pending case a “corrected” judgment was entered at some subsequent date. Whether such a correction can be made with no notice to the defendant, and the transcript shows none, is a matter we need not and do not now rule. We go no further than to state that although there was a failure to comply strictly with Criminal Rule 27.11, the judgment is not void.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

EAGER, P. J., and FINCH and HYDE, JJ., concur.

STORCKMAN, J., not sitting.