author: PRITCHARD, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Appellant, v. Walter E. NOLAN, Respondent.
    No. 52299.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 11, 1967.

      Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for appellant.
    Orville Richardson, St. Louis, for respondent.
   PRITCHARD, Commissioner.

Upon petition of respondent, here and in the trial court represented by able appointed counsel, respondent’s 1943 conviction and sentence of fifty years assessed by a jury for robbery in the first degree was by the trial court set aside and a new trial was ordered. Respondent’s conviction was affirmed by this court, State v. Nolan, Mo., 171 S.W.2d 653. The state’s right of appeal in proceedings such as this under Supreme Court Rule 27.26, V.A.M.R. (a final judgment being set aside), was settled in State v. Parker, Banc, Mo., 413 S.W.2d 489, Nos. 51,972, 51,973 and 51,974. See also §§ 547.200, 547.210, RSMo 1959, V. A.M.S., and Supreme Court Rule 28.04, V.A.M.R.

By amended information, respondent was charged with robbery in the first degree “with force and arms,” which occurred in 1929 after the statute was amended authorizing imposition of a sentence of ten years’ imprisonment to death for the aggravating fact of such robbery being committed “by means of a dangerous and deadly weapon.” (This latter fact was not charged in the amended information.) See § 3310, R.S.Mo. 1919, and the amended statute, § 4061, R.S.Mo. 1929, the latter being in force today except that in 1943 an amendment was added reducing the minimum punishment from ten to five years, which is incorporated in § 560.135, RSMo 1959, V.A.M.S.

There was evidence that respondent did, on March 23, 1929, commit the robbery “at the point of a revolver.” State v. Nolan, loc.cit. 171 S.W.2d 654 [1], The jury was instructed that “the defendant, Walter E. Nolan, with force and arms, by means of a dangerous and deadly weapon, to-wit: a pistol, feloniously did make an assault upon one Joseph Rapp by pointing a pistol at him * * *” The jury returned its verdict: “We, the jury in the above entitled cause, find the defendant guilty of Robbery 1st Degree, by means of a dangerous and deadly weapon, and assess the punishment at imprisonment in the penitentiary for fifty years. (Signed) Fred H. Brushwitz, Foreman.”

Respondent’s contention was and is that the trial court in 1943 had no jurisdiction to sentence him for robbery by means of a dangerous and deadly weapon because he had not been charged with that offense; the sentence was an illegal violation of his right to be informed of the nature and cause of his accusation, guaranteed by Mo. Const. 1875, Art. 2, § 22, and the Sixth and Fourteenth Amendments of the Constitution of the United States.

The state first says “The trial court was without jurisdiction to discharge petitioner on motion to vacate on the point at issue because this court has previously ruled the point adversely to him on two different occasions and for the further reason that the issue passed on goes to a mere irregularity and not a fundamental error.” It is said that the first occasion where this court ruled the point against respondent was on the original appeal, “We have examined the record proper and find it free from error.” State v. Nolan, loc.cit. 171 S.W.2d 655. At the time of the original appeal, the “record proper” consisted in part of the information, the verdict and judgment. State v. Willard, 228 Mo. 328, 128 S.W. 749. The original record here does contain the questioned information, the instruction, and the verdict above mentioned. The second occasion was in 1962 when respondent filed his application for a writ of habeas corpus alleging, among other matters, that his imprisonment was unlawful because the information upon which he was tried did not charge him with the crime of robbery in the first degree by means of a dangerous and deadly weapon; and that the verdict of the jury found him guilty of a crime with which he was not charged in the information. The application for said writ was denied on September 10, 1962, “for failure to state a claim upon which relief may be granted.”

Respondent was not represented by counsel on the original appeal and filed no brief. The case was reviewed upon the assignments of error in the motion for new trial, none of which raises an issue of the necessity for pleading aggravating circumstances which would authorize the imposition of additional punishment. In the ha-beas corpus proceeding, although the matter of the charge omitting the allegation of robbery with a dangerous and deadly weapon was mentioned, respondent, again not represented by counsel, stated no reason why matters in aggravation should be pleaded. If the infirmity in the information existed at the time of the 1943 review, or at the time of the habeas corpus application, and was not disposed of, it still exists, and it constitutes a ground for collateral attack and the matter, quite apparently not fully considered in the aspects now presented, may be corrected under the broad provisions of said Rule 27.26. The prevailing view is that proceedings in habeas corpus, not disposed of on the merits, are not res adjudicata. 25 Am.Jur. Habeas Corpus, § 156, p. 250, and pocket part; 39 C.J.S. Habeas Corpus § 105, p. 698, and pocket part; Anno. 161 A.L.R. 1332; as to Federal Courts, Anno. 92 L.Ed. 1381 et seq.; notably the case of United States ex rel. McCann v. Thompson (C.C.A.2d), 144 F.2d 605, 606, 156 A.L.R. 240, where Judge Learned Hand said, “While it is quite true that an order dismissing one writ of habeas corpus does not formally estop the relator from suing out another on the same grounds, that does not mean that he may again and again call upon the court to repeat its rulings. Even this great writ can be abused, and when the question has once been decided upon full consideration, there must be an end, else the court becomes the puppet of any pertinacious convict. Salinger, Jr. v. Loisel, United States Marshal, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989; United States ex rel. Bergdoll v. Drum, 2 Cir., 107 F.2d 897, 129 A.L.R. 1165.” In this state see Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 996, 15 L.R.A.,N.S., 389, quoting Weir v. Marley, 99 Mo. 484, 12 S.W. 798, “That the doctrine of res adjudi-cata is not applicable to the case of a refusal to discharge, and that the prisoner is entitled to the opinion of all the courts or officers authorized in a given cause to issue the writ as to the legality of his imprisonment, is conceded, and is not limited in this state by statutory enactment, except in the one particular that the applicant for the writ in his petition must state ‘that no application has been made or refused by any court officer or officer superior to the one to whom the petition is presented.’ ” In State v. Goodwin, Mo., 396 S.W.2d 548, a previous hearing on the prisoner’s application for a writ of habeas corpus, a full evi-dentiary proceeding, with all relevant documents presented, was had, hence, as properly held, there was no basis for the Rule 27.-26 proceedings. So also in State v. Thompson, Mo., 324 S.W.2d 133. Under the particular circumstances of this case, respondent is not barred from presenting the matter of failure to plead the aggravating fact of his use of a dangerous and deadly weapon in the robbery for which he was found guilty.

The state next says that “The information herein was sufficient to apprise the petitioner of the cause and the nature of the offense for which he was convicted.” The argument proceeds: “Obviously all parties involved regarded the words used in the information as charging the use of a weapon. In support of this contention we draw on several sources.” First, the state says respondent himself knew, as evidenced by the statement in his present motion to vacate, that at the time of the voir dire examination of the jury panel the state intended to try the case under R.S.Mo. 1929, § 4061, Clause 1, robbery in the first degree by means of a dangerous and deadly weapon. Second, the trial judge permitted a continued qualification of the panel on the death sentence and subsequently instructed the jury thereon, all without objection.

The amended information charging first degree robbery “with force and arms” (although that phrase is “superfluous and a meaningless bit of antiquity”, State v. Pope, Mo., 364 S.W.2d 564, 568) does not charge that the act was done by means of a dangerous and deadly weapon. Respondent had a right to rely upon the accusation of the information, which, as worded, would not make a graver penalty applicable under § 4061, R.S.Mo. 1929. Mo.Const.1875, Art. 2, § 22, “In criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of the accusation; * * * ” There is no waiver as claimed by the state; this for the reason that the burden was on the state to prove the charge in the amended information. The charge “with force and arms” does not include the allegation that the robbery was committed by means of a dangerous and deadly weapon. The charge in State v. Moore, Mo., 80 S.W.2d 128, did contain that allegation which invoked the more severe penalty prescribed by said § 4061, R.S.Mo. 1929, and upon the only issue there involved it was held that the fact the information failed to allege that the pistol was loaded did not keep it from being a dangerous and deadly weapon. So also in the cited case of State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113, 115. The concealed weapons law has no analogy, although it refers to any kind or description of a dangerous or deadly weapon (§ 564.610, RSMo 1959, V.A.M.S.; § 4029, R.S.Mo 1929), because there is no increased penalty provided. The felony-murder rule has no application. The fact that a murder is committed in connection with the commission of a felony merely supplies the elements of deliberation and premeditation necessary to a finding of first degree murder under the statute — it is not a situation of enhanced punishment for aggravating facts.

In State v. Pope, Mo., 364 S.W.2d 564, 568 [4, 5], it was said, “ * * * [T]he element of a dangerous and deadly weapon goes merely to the penalty, State v. Vigus, Mo., 66 S.W.2d 854; it is not a charge of a separate offense, as such. Section 560.-135. * * *.” The state says, “It is not always a fundamental or constitutional requirement that matters in aggravation be pleaded before they may be applied.” Judgments of convictions entered simultaneously are required to run consecutively under statutes (§ 222.020 and § 546.480, RSMo 1959, V.A.M.S.) and are applicable after trial or plea — they are not a matter, as here, for which there exists a burden on proof at a trial.

In 27 Am.Jur. Indictments and In-formations, § 92, p. 653, it is said, “In some jurisdictions statutes have been enacted which, without setting up more than one offense or more than one degree of the same offense, permit the infliction of a heavier sentence where it is shown that the accused committed the crime in question under circumstances showing aggravation. The decisions construing these statutes which vary the punishment for a given offense according to its enormity have generally taken the position that in order to justify the imposition of the higher sentence, it is necessary that the matter of aggravation relied upon as calling for such sentence be charged in the indictment or complaint.” See also 42 C.J.S. Indictments and In-formations § 145a, p. 1056. The only exception to this general rule is where the punishment is committed to the discretion of the court, the distinguishable situation in Rell v. State, 136 Me. 322, 9 A.2d 129, relied upon here by the state. For a collection of cases holding that the indictment or information must charge aggravating circumstances see 125 A.L.R. 605, and later cases: Jordan v. United States District Court for Dist. of Col., 98 U.S.App.D.C. 160, 233 F.2d 362; Howard v. District of Columbia, Mun.C.A.D.C., 132 A.2d 150; Merrill v. Gladden, 216 Or. 460, 337 P.2d 774, 778 [7]; State v. Blacker, 234 Or. 131, 380 P.2d 789, 792 [2-4]; Owens v. State, 162 Tex. Cr.R. 212, 283 S.W.2d 749, 751; State v. Stewart, 255 N.C. 571, 122 S.E.2d 355, 356 [2], See also Aderhold v. Pace, C.C.A.Ga., 65 F.2d 790; Meyers v. United States, C.C.A.Tex., 116 F.2d 601. In connection with the holding that the 1927 Act, § 4428, R. S.Mo. 1929, adding punishment for prior convictions, did not repeal the 1919 Habitual Criminal Act, the court in State v. Taylor, 323 Mo. 15, 18 S.W.2d 474, 477 [6], said (by way of dicta), “The information in this case did not allege that the robbery charged against appellant and his codefen-dants was committed ‘by means of a dangerous and deadly weapon.’ In the absence of such allegation, the graver penalty under section 3310, p. 174, Laws 1927, could not have been imposed.”

The state’s contention that the amended information cured any deficiency in the information here at issue is answered that the same was not amended to include the allegation that the robbery was committed with a dangerous and deadly weapon so as to authorize an enhanced punishment. The only amendment which appears from the record is that which alleges previous convictions. The statute of jeofails, §§ 545.290, 545.300, RSMo 1959, V.A.M.S., cannot be used to supply the missing allegation. Compare State v. Hancock, 320 Mo. 327, 7 S.W.2d 273, 274 [1,2] ; and the matter omitted is not cured or aided by the verdict, 42 C.J.S. Indictments and In-formations § 312, p. 1343 et seq. “The Statute of Jeofails * * * simplifies criminal pleadings to some extent in regard to clerical errors and omissions, but leaves the common-law requirements of exactitude and completeness unrelaxed.” State v. Anderson, 298 Mo. 382, 250 S.W. 68, 70 [1]; State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 928; State v. Harris, Mo., 313 S.W.2d 664, 669; State v. Fenner, Mo., 358 S.W.2d 867, 870; and State v. Elgin, Mo., 391 S.W.2d 341, 343.

The sentence here, being based upon a finding of the jury of an aggravated fact not charged in the information, is illegal. The trial court was without power or jurisdiction to impose that sentence. Thus no objection was necessary to preserve the matter for this collateral proceeding under Supreme Court Rule 27.26, supra.

The judgment granting a new trial is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lee Allen McCLINTON, Appellant.
    No. 52122.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Rodney Weiss, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Wilson Gray, St. Louis, for defendant-appellant.
   STORCKMAN, Judge.

The defendant Lee Allen McClinton was convicted in the St. Louis Court of Criminal Correction of stealing less than $50, a misdemeanor. Sections 560.156 and 560.161, RSMo 1959, V.A.M.S. He appealed to the St. Louis Court of Appeals which reversed the judgment and remanded the cause, but because of the general interest and importance of the question involved and for the purpose of re-examining the existing law ordered the cause transferred to this court pursuant to Art. V, § 10, Constitution of Missouri 1945, V.A.M.S.

The defendant was charged by information with stealing a man’s jacket valued at less than fifty dollars. He was tried in summary manner by the court without a jury and found guilty as charged. The defendant was not represented by counsel at his trial nor at the initial hearing on appeal. The St. Louis Court of Appeals reviewed the questions properly preserved by defendant’s motion for new trial and found the evidence sufficient to support the conviction; it further reviewed as plain error under S.Ct. Rule 27.20(c), V.A.M.R. the absence of any entry of record showing a waiver of a trial by jury and held this to be a violation of S.Ct. Rule 26.01(b), V.A.M.R.

We find as did the St. Louis Court of Appeals that the evidence was sufficient to support a conviction of stealing less than fifty dollars. We review the evidence briefly. The testimony of the prosecuting witness Alvin Raines was that on the day in question he parked the panel truck he was driving on Olive Street about 200 feet west of Eighteenth Street and left his jacket on the front seat of the car. As he approached the truck upon his return from a call at a nearby office he saw a man he later identified as the defendant back out of the vehicle with the jacket under his arm and start to walk westwardly on Olive Street. Raines ran after the defendant who, when he perceived that he was being pursued, threw the jacket at Raines and escaped. Raines notified a passing officer and together they began a search of the surrounding neighborhood. Shortly thereafter Raines found the defendant in Union Station and caused his arrest. Raines’ identification of the defendant as the man he saw stealing his jacket which he valued at $15 was positive and unequivocal. In determining whether the evidence was sufficient to support the verdict, the appellate court must consider as true all evidence favorable to the state together with inferences that can reasonably be drawn therefrom and must reject contrary evidence and inferences. State v. Thomas, Mo., 393 S.W.2d 533, 536[2], Raines’ testimony was clearly sufficient to establish defendant’s commission of the offense charged and to support the judgment of conviction.

The assertion in the defendant’s motion for new trial that the finding and judgment of the court was against the weight of the credible evidence does not comply with S.Ct. Rule 27.20(a) and preserves nothing for appellate review. State v. Roberts, Mo., 332 S.W.2d 896, 898.

The remaining ground in the motion for new trial is that the finding and judgment of the court was contrary to law. In examining the transcript of the record on appeal, we were immediately struck by the fact that the defendant’s request for time to procure an attorney was not granted, that the defendant represented himself poorly at the .trial and his rights were not fully protected. If not strictly within the purview of the specification that the judgment of the court was contrary to law, we deem it worthy of consideration under the plain error Rule 27.20(c) on the record before us.

Section 18(a) of Art. I of the 194S Constitution of Missouri provides that in criminal prosecutions the accused shall have the right to appear and defend in person or by counsel. The denial of a person’s right to be represented by counsel constitutes a violation of a constitutional right and may justify the reversal and remand of a judgment of conviction. State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S.W. 1028, 1032-1033[11], At the beginning of the trial, the trial judge interrogated the defendant in the following manner:

“THE COURT: Are you ready for trial ? A Yes, sir.

THE COURT: Do you have a lawyer ? A No, sir.

THE COURT: Do you wish to go to trial without a lawyer? A Well, if you give me a chance to get one, I will get one.

THE COURT: You have had a lot of chance to get a lawyer. You have been out on bond for over a month. A Yes, sir.

THE COURT: Why didn’t you get a lawyer? A Well, I didn’t think it was necessary to. I am not guilty of the crime.

THE COURT: That is what we are going to find out. What changed your mind ? A Well — .

THE COURT: What? A I guess because you just said that, that was all.

THE COURT: What did I say? A Did I want to go to trial with a lawyer.

THE COURT: I said, do you want to go to trial without a lawyer. A Without, yes, sir.

THE COURT: All right. Have a seat there.”

Apparently this was the. first setting of the case. The record further shows that the defendant who had a seventh-grade education was employed as a truck driver earning $60 a week and had never been convicted of violating a criminal law.

The record demonstrates ways in which legal counsel could have been of service to the defendant. There were only two witnesses — the owner of the jacket and the arresting police officer. The defendant made no objection to any of their testimony. At the court’s invitation, the defendant undertook to cross-examine the prosecuting witness but his inept efforts prompted an inquiry by the court as to whether the defendant was asking a question or making a statement. The defendant replied that he was making a statement, whereupon the court advised him that he was not permitted to make a statement and that he would have an opportunity to testify. The defendant’s attempt to cross-examine the witness only tended to emphasize and strengthen the state’s case.

Further it appears that counsel would have been beneficial to the defendant in regard to the procedure of his testifying in his own behalf and protecting his statutory rights with respect to his cross-examination. Section 546.260, RSMo 1959, V.A.M.S., provides that the accused shall not be required to testify but may testify in his own behalf and if he elects to do so shall be liable to cross-examination “as to any matter referred to in his examination in chief”. At the conclusion of the state’s case in chief, the defendant answered in the affirmative the following question by the court: “Do you wish to take the stand and testify in your own behalf and tell your side of the story?” The witness was then sworn and was immediately subjected to direct examination by the assistant prosecuting attorney and the court. After seven questions had been asked and answered, the court stated that he would like to advise the defendant of his constitutional rights, that the defendant was not required to take the stand and to testify, that this was a right that could be waived and if he testified anything he said could be used against him. The court again asked the defendant if he wished to testify and tell his side of the story and the defendant indicated he did. The interrogation by the prosecuting attorney and the court in question and answer form then continued without objection. While the defendant steadfastly denied that he had taken the jacket, he made no preliminary statement in his part of the case and there was no direct examination as such. Nevertheless, his appearance on the stand was the occasion for extensive cross-examination by the prosecuting attorney and the court. The cross-examination of an accused outside of the scope of his direct examination is generally held to be in violation of § 546.260 and to constitute reversible error. State v. Pierson, 331 Mo. 636, 56 S.W.2d 120, 124-125 [6-9]; State v. Kelley, Mo., 284 S.W. 801, 802[2]; State v. Santino, Mo., 186 S.W. 976, 978 [7], It has been said that it is impossible to lay down any definite rule as to the scope of cross-examination of a defendant who testifies in his own behalf and each case is very much dependent upon its own facts and background. State v. Scown, Mo., 312 S.W.2d 782, 786[1],

At the conclusion of the defendant’s testimony, the court recalled the prosecuting witness to the stand. Under further questioning by the court, the prosecuting witness reiterated his identification of the defendant and his certainty of it. This is another instance in which the defendant might have benefited by the advice and assistance of counsel.

As previously noted, the defendant expressed a desire to obtain counsel if permitted to do so. So far as appears from the record, this was the first setting of the case and there were only two witnesses for the state. Undoubtedly the defendant was negligent in not obtaining counsel during the interval between his arraignment on March 17, 1965, and the beginning of his trial on April 15, 1965. On the other hand, the record does not demonstrate there would have been any prejudice to the state or great inconvenience if the court had continued the case for a few days with the strict understanding that he must obtain counsel and be ready for trial on the next setting. Instead the trial was conducted in the manner described with the result that the court immediately found the defendant guilty as charged and sentenced him to serve sixty days in the workhouse.

In the circumstances shown by this record, we hold that the failure of the trial court to grant the defendant an opportunity to obtain counsel was an abuse of discretion affecting substantial rights of the defendant. The error is prejudicial and justifies a reversal of the judgment and remand of the cause for a new trial. This ruling is strictly limited to the facts shown by the record in this case.

Since the cause must be retried, it is in order for us to examine the holding of the St. Louis Court of Appeals that S.Ct. Rule 26.01(b) requires the waiver of a jury in a misdemeanor case to be “made in open court and entered of record”, and that the absence of such a showing and entry in the record constitutes reversible error. The court of appeals reversed and remanded on this ground, treating it as “plain error” since there was no auch specification in the motion for new trial. The opinion recognizes that prior to January 1, 1953, the effective date of Rule 26.01, under statutes of long standing and all reported decisions, the defendant’s waiver of a jury in a misdemeanor case need not be entered as a matter of record and the absence of such an entry would not create a presumption that the court proceeded irregularly. Among the supporting authorities cited and discussed in the opinion are State v. Larger, 45 Mo. 510, 511-512; State v. Finley, 162 Mo.App. 134, 144 S.W. 120; State v. Shapiro, Mo.App., 248 S.W.2d 62; State v. Smith, Mo.App., 268 S.W.2d 48; State v. Williams, Mo.App., 349 S.W.2d 375; State v. Belleville, Mo.App., 362 S.W. 2d 77; §§ 546.040, 546.050 and 543.200, RSMo 1959, V.A.M.S.; and § 22(a), Art. I, of the 1945 Missouri Constitution. The opinion also notes that the court of appeals has held that, if a jury is demanded by a defendant in the St. Louis Court of Criminal Correction, it is error to deny the request. City of St. Louis v. Moore, Mo.App., 288 S.W.2d 383. The St. Louis Court of Criminal Correction, nevertheless, is authorized to proceed “in a summary manner.” Section 479.-120, RSMo 1959.

Part (a) of Rule 26.01 is based on § 546.040 of our statutes. The first sentence of part (b) of the rule is the same as the concluding clause of § 22(a) of Art. I of the Constitution. The last sentence of part (b) of Rule 26.01 is said to be patterned after Rule 23(a) of the Federal Rules of Criminal Procedure which provides that: “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” The last sentence of our Rule 26.01(b) originally stated that: “Such waiver and assent shall be in writing, signed by the defendant and the judge, and filed of record.” This was changed effective January 1, 1960, so that parts (a) and (b) of the Rule 26.01 now read :

“(a) All issues of fact in any criminal case shall be tried by a jury to be selected, summoned and returned in the manner prescribed by law, unless trial by jury be waived as provided in this Rule.

“(b) The defendant may, with the assent of the court, waive a trial by jury and submit the trial of any criminal case to the court, whose findings shall have the force and effect of the verdict of a jury. Such waiver by the defendant shall be made in open court and entered of record.”

We are here concerned in particular with the force and effect of this last sentence of part (b) which we have italicized.

In order to put S.Ct. Rule 26.01 in proper perspective, a review of cognate statutory and constitutional provisions is necessary. Sections 546.040 and 546.050 referred to above were in effect in 1870 when State v. Larger was decided. See General Statutes of Missouri, 1865, Ch. 213, §§ 1 and 2, p. 848. What is now § 543.200 was enacted in 1870. Laws 1870, p. 63, § 1, amending the General Statutes of 1865, § 5 of Ch. 186, p. 726. Thus at all times relevant herein these statutory provisions have been in force:

“All issues of fact in any criminal cause shall be tried by a jury, to be selected, summoned and returned in a matter prescribed by law.” Section 546.040.

“But the defendant and prosecuting attorney, with the assent of the court, may submit the trial of misdemeanors to the court, whose finding in all such offenses shall have the force and effect of the verdict of a jury.” Section 546.050.

“After the plea of the defendant has been entered, if he plead not guilty, the defendant or prosecuting witness, or prosecuting attorney, may demand a jury; but if no jury be demanded, the case may be tried by the magistrate.” Section 543.200.

Therefore, since 1870 at least, the defendant in a misdemeanor case has had a statutory right to a trial by jury (§ 546.040) which could be waived (§ 546.050) and the case could be tried by the magistrate if a jury was not demanded (§ 543.200). Furthermore, the failure of the record to show a waiver would not constitute reversible error. See State v. Larger, 45 Mo. 510, and other cases referred to above. This is in keeping with the general rule in misdemeanor cases and is not inconsistent with state and federal constitutional provisions. District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 661-663[1-4], 81 L.Ed. 843; Cheff v. Schnackenberg, 384 U.S. 373, 379, 86 S.Ct. 1523, 16 L.Ed.2d 629; Art. III and Amendment VI of the U. S. Constitution ; 50 C.J.S. Juries § 77, p. 781; 31 Am. Jur., Jury §§ 32, 33 and 36, pp. 38, 39 and 41. In 39 Harvard Law Review at page 917 there is an exhaustive treatise by Felix Frankfurter and Thomas G. Corcoran, then of the Harvard Law School, entitled, “Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury”. The article traces the treatment of such offenses through the common law of England and the colonial statutes into the Constitutions of the United States and various states. It points out at page 920 that: “In England and in the several states a vast body of statutory prohibitions, constituting so-called petty or minor offenses, is enforced through summary procedure, i. e., before one or more judges without juries.” The article clarifies what is intended by such terms as “[t]he right of trial by jury as heretofore enjoyed” appearing in § 22(a) of Art. I of our Constitution. It concludes that the legislature and the courts have considerable latitude in determining what offenses are minor or petty in contemplation of their historical background and which, therefore, can be withdrawn from determination by a jury and decided in a summary procedure before the court.

The first sentence of S.Ct. Rule 26.01(b) is practically a rescript of the concluding clause of § 22(a) of Art. I. Prior to the enactment of this new provision in the 1945 Constitution, a defendant in a felony case could not waive a jury. State v. Talken, 316 Mo. 596, 292 S.W. 32, 33[5], As we have seen, the enactment of such a provision was not necessary to allow the waiver of a jury in a misdemeanor case. That the primary purpose was to permit waiver of a jury in felony cases is borne out by the proceedings of the 1943-1944 Constitutional Convention of Missouri. Mr. P. M. Marr, a delegate from Milan, Sullivan County, Missouri, was Chairman of the Committee on Preamble, Boundaries, Bill of Rights and Distribution of Powers. In presenting to the convention § 26 of File No. 8, now § 22(a) of Art. I, Chairman Marr stated: “Mr. President, and Members of the Convention, this Section has three new features as compared with the like Section in the present Constitution. This adds three new points. In the first place it gives the defendant in every criminal case, the right with the assent of the court to waive a jury trial and submit his case to the court for trial before the court, the finding of the court having the same force and effect as the finding of the jury. As of course the lawyers in the Convention know, the man who is charged with a felony as the law now stands, cannot waive the jury and have the court try the case, but if he pleads Not Guilty the case must be tried before a jury, and there are cases where the defendant, if he desires, should have the right to waive the jury and submit his case to the court for a trial upon a plea of Not Guilty, and it simply grants to the defendant an additional right. This isn’t granting the state any more rights on that issue but granting the defendant an additional right that he may exercise for his own good if he or his counsel, in their judgment, deem that it is wise for them to do that.” Debates of the Constitutional Convention, p. 1215.

Historically, trial by jury has been required in felony cases and is constitutionally protected, but jury trials have generally been held to be dispensable in the trial of misdemeanors whether created by state law or municipal ordinances. Therefore, the manner of waiving a jury trial in a misdemeanor case is within the legislative control of the general assembly unless the Constitution provides otherwise.

Art. V, § 5, of the 1945 Constitution, grants the supreme court the power to establish rules of practice and procedure for all courts with the limitation, however, that the rules shall not change “the law relating to * * * juries, [or] the right of trial by jury, * * The general assembly acting within its proper domain has enacted statutory provisions relating to trial by jury in misdemeanor cases and the manner of waiving it. The concluding sentence of S.Ct. Rule 26.01(b) must be held to have no efficacy against contrary provisions of §§ 546.050 and 543.200. The statutory provisions and not the rule are controlling.

For the reasons heretofore assigned, the judgment is reversed and the cause is remanded for a new trial consistent with the views expressed herein.

All concur.


author: HENLEY, Judge.

text:
    STATE of Missouri ex rel. JUNIOR COLLEGE DISTRICT OF SEDALIA, William C. Hopkins, C. Gordon Stauffacher, Donald C. Proctor, John W. Ragland, E. L. Rhodes, and Clarence Frisch, Trustees; the State Board of Education and Hubert Wheeler, Commissioner of Education, Relators, v. The Honorable Charles V. BARKER, Judge, Circuit Court of Benton County, 30th Judicial Circuit, Respondent.
    No. 52939.
    Supreme Court of Missouri, En Banc.
    Aug. 30, 1967.

      William F. Brown and James T. Buckley, Sedalia, for relators Board of Trustees of Junior College District of Sedalia.
    Norman H. Anderson, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for relators Commissioner of Education and State Board of Education.
    Winston Cook and Thomas A. Vetter, Jefferson City, for respondent Charles V. Barker, Judge, Circuit Court of Benton County, 30th Judicial District.
   HENLEY, Judge.

This is an original proceeding in prohibition to prevent respondent from exercising jurisdiction in the case of Stelljes, et al., v. Lamkin, et al., members of the State Board of Education; Hubert Wheeler, State Commissioner of Education; and William C. Hopkins, et al., Trustees of The Junior College District of Sedalia, filed and pending in the circuit court of Benton County, except to enter a final judgment dismissing the case. Stelljes, et al., are hereinafter referred to as plaintiffs.

The case of Stelljes, et al., v. Lamkin, et al., filed by residents and taxpayers of Benton county, arose out of the recent organization of The Junior College District of Sedalia, Missouri, one of the relators, hereinafter sometimes referred to as the District. The District consists of parts of both Benton and Pettis counties.

Prior to December 5, 1965, a petition was presented to the State Board of Education (hereinafter referred to as State Board or Board) by voters of each component school district within the proposed junior college district area praying that the area described therein be organized as “The Junior College District of Sedalia, Missouri.” On the latter date the Relator, State Board, determined that the area proposed to be included within the District met the standards established for junior college districts and ordered that an election be held within that area on April 5, 1966, to vote on the proposal and to elect trustees. The proposal to organize the District was approved by the voters and the relators, William C. Hopkins, et al., were at the same time elected as the six trustees of the District. Thereafter the results of the election were transmitted to the State Board and on May 6, 1966, that Board made an order declaring the District organized. The steps taken and the procedure outlined in this paragraph are provided for in § 178.800. (All statutory references are to RSMo 1959 and V.A.M.S.)

On May 6, 1966, the same day the Board made its above-mentioned order, counsel for the plaintiffs, Stelljes, et al., presented a petition to the Board requesting a hearing on “ * * * whether the Board’s determination of December 5, 1966, was supported by evidence as required by statute and by administrative rules and regulations of the Board.” The request for a hearing was denied and, as indicated, the Board entered its order declaring the District organized.

Seven days later, on May 13, 1966, plaintiffs filed their suit sounding in the nature of a petition for review pursuant to Chapter 536, RSMo 1959, V.A.M.S., for a declaratory judgment, and for an injunction. Three of the trustees of the District, defendants in that suit and relators herein, are residents of Benton county.

Plaintiffs’ petition alleges that the action is brought to review the “Principles, Regulations and Standards for the Organization and Accreditation of Public Junior Colleges in Missouri adopted by the State Board pursuant to §§ 178.770 — 178.890 * * * ” and to review “ * * * the legality of the application of those rules and proceedings with respect to the formation of * * * this District. The petition states that they were denied a hearing before the Board and are, therefore, entitled to a hearing before the court with the right to present evidence in support of their allegations. The petition further alleges that §§ 178.770-178.890 violate Article II and § 9(b) of Article IX, Constitution of Missouri, V.A.M.S., in that they constitute an unlawful delegation of powers by the General Assembly to the State Board by permitting the Board to determine whether an additional educational institution is necessary. The petition further alleges that the “Principles, Regulations and Standards * * * ” adopted by the Board are arbitrary, capricious, and unreasonable and, therefore, unlawful, because they do not provide for a public hearing to insure that the initiative to establish a junior college district does in fact come from the area to be served, and because those Principles, etc., do not furnish criteria or standards for determining whether: (1) a junior college is needed in a proposed district, (2) the tax base is sufficient to support such college, (3) the high schools within the district graduate each year a sufficient number of persons to maintain an adequate enrollment. The petition further alleges that the State Board unlawfully delegated its powers to make a survey to determine the need and potential for a junior college in the area to a private group not representative of the whole area, but representative only of Pettis county and the city of Sedalia in particular, and that this group, in securing signatures on the petition for formation of the District, misrepresented the facts and misled the citizens of Benton county signing the petition. The petition further alleges that the proposal to form the District was not submitted to the Missouri Commission on Higher Education established by Chapter 173, RS Mo 1959, V.A.M.S. and, because it was not so submitted and is not a part of the plan for higher education that Commission is charged with establishing, formation of the District was arbitrary, unreasonable, and contrary to the intent of the General Assembly in enacting Chapter 173. The petition further alleges, in substance, that the State Board did not follow the constitution, statutes, or its own rules, and abused its discretion and acted arbitrarily and unlawfully in approving formation of the District in that the District: (1) does not fit logically into a state-wide system of public supported colleges, (2) is not compact in area, (3) does not include a population large enough to justify a two-year college, (4) does not include a territory of such size that resident students can commute from home to school in a reasonable length of time, (5) does not encompass enough area to provide a tax base sufficient to support an accredited junior college program, (6) is not needed because there is no lack of post high school educational opportunities; and, further, that the high schools within the District do not graduate each year a sufficient number of students to maintain an adequate enrollment.

The prayer of the petition is for a decree (1) that §§ 178.770-178.890 are unconstitutional ; (2) that the “Principles, Regulations and Standards,” adopted by the State Board are invalid, insofar as they apply to the District; (3) that the District was not organized in accordance with the law; and (4) that the Trustees be permanently enjoined from taking any further steps in connection with the formation, organization or operation of the District.

On the same day the petition was filed the court, without notice, entered an order temporarily enjoining the Trustees from taking any further action to form, organize and operate the District.

Thereafter, in June and July, 1966, the defendants in Stelljes, et al., v. Lamkin, et al., (relators herein) filed their separate motions to dismiss the action and to dissolve the temporary injunction on the grounds, inter alia, that (1) the venue was not proper, (2) the court was without jurisdiction, and (3) the District is a public corporation, the legality of the formation and existence of which may be attacked by quo warranto only. These motions were overruled by the Honorable William E. Neff, Jr., then judge of that circuit. Respondent became judge of the circuit on January 1, 1967, and thereafter the trustees, State Board and Commissioner of Education renewed their objections to the jurisdiction of the court by again filing motions alleging essentially the same grounds as those above mentioned. These motions were overruled by respondent on February 21, 1967, and on April 10, 1967, this court issued its provisional rule in prohibition in response to relators’ petition for the writ filed March 31,1967.

Relators’ first and main point is that the court has exceeded its jurisdiction by granting the injunction and is without jurisdiction to grant the relief prayed because the District is a public corporation the legality of the formation and existence of which may not be challenged by individuals as plaintiffs by declaratory judgment action, injunction or petition for review, but may be challenged by the State only by quo warranto, a direct proceeding instituted for that purpose.

Plaintiffs’ petition in the trial court and relators’ petition for the writ of prohibition allege, and respondent’s return to the provisional rule admits, the detailed steps taken and the procedure followed pursuant to § 178.800 to effect the organization of the District; relators and respondent have stipulated to facts showing an assumption of corporate powers by the District and its trustees. We conclude from this record that the District is a public corporation, subsection 2 of § 178.770, having at least a' de facto existence. State ex rel. Consolidated School District No. 2, Clinton County v. Hunt, Mo., 199 S.W. 944; State ex rel. Hand et al. v. Bilyeu, Mo.App., 346 S.W.2d 221, 230 [17]; Spiking School District No. 71, De Kalb County et al. v. Purported “Enlarged School District R-II, De Kalb County, Mo.,” et al., 362 Mo. 848, 245 S.W.2d 13, 21 [10-11].

The law is settled that when a public body has, under color of authority, assumed to exercise the powers of a public corporation of a kind recognized by law, so as to become at lest a de facto corporation, the validity of its organization can be challenged only by direct proceedings in quo warranto by the state through its officers designated in § 531.010, and cannot be challenged by individuals. Spiking School District No. 71, De Kalb County, et al. v. Purported “Enlarged School District, De Kalb County, Mo.”, et al., supra, 1.c. 21 [11-13], and cases there cited.

“Some courts give as the reason for the * * * rule [stated in Spiking and other cases] that corporate franchises are grants of sovereignty only, and, if the state acquiesces in their usurpation, individuals will not be heard to complain. Others base the rule upon consideration of public policy, emphasizing the importance of stability and certainty in such matters, and the serious consequences which might follow if the existence of a public corporation could he called in question by persons who do not have an interest in the matter separate and distinct from that of the State itself. But, whatever reason is advanced, the rule is unanimous that where a public body has, under color of authority, assumed to exercise the power of a public corporation of a kind recognized by law, the validity of its organization can only be challenged by the State * * *. Its de facto existence * * * should not be allowed to be questioned by private individuals. State ex rel. Childs, Att’y. Gen., v. Board of Com’rs of Crow Wing County, 66 Minn. 519, [68 N.W. 767,] 69 N.W. 925,. [73 N.W. 631,] 35 L.R.A. 745.” Spilker et al. v. Bethel Special School District of Shelby County et al., Mo.App., 235 S.W.2d 78, 80[3],

Respondent contends (1) that approval of the organization of the District by the State Board was an administrative decision of a judicial or quasi judicial nature subject to review pursuant to Article V, § 22, Constitution of Missouri and chapter 536, RSMo., V.A.M.S., (2) that plaintiffs have standing to maintain an action to review that decision, (3) that quo warranto is not the exclusive remedy, and (4) that relators’ petition for the writ of prohibition is barred by laches; therefore, he is not acting without or in excess of his jurisdiction.

As indicated, plaintiffs’ pleading is a combination of an action for declaratory judgment, suit for injunction, and a petition for review under chapter 536. As a petition for review of the action of the State Board it is still nothing more or less than an attack by individuals upon the validity of the formation and existence of the District, a public corporation; it charges that formation of the District was unlawful and prays an adjudication sustaining that charge; it seeks in the guise of review under chapter 536 the same ultimate result sought in actions we have said individuals may not maintain against public corporations.

We hold that individual plaintiffs may not maintain an action attacking the validity of a public corporation by way of a petition for review.

Plaintiffs’ petition states no claim for relief to which plaintiffs are entitled, and none can be stated by them. A determination of the questions presented necessarily indirectly involves whether the District may levy taxes and, at a crucial time of the year, whether it may collect taxes, whether it may receive federal financial grants and state financial assistance, and whether it may employ faculty and administrative personnel and enroll students. Therefore, the public interest demands a speedy determination of these questions and an appeal would be inadequate. Respondent exceeded his jurisdiction in granting the temporary injunction and, for the reasons stated, is without jurisdiction to further entertain the action.

In support of • his contention that relators’ petition for the writ of prohibition is barred by laches respondent cites State ex rel. Nineteenth Hole, Inc. v. Marion Superior Court et al., 243 Ind. 604, 189 N.E.2d 421. He cites no Missouri cases or other authority. We have read this cited case; it is not applicable to the facts in this case. We find no authority, pro or con, on this proposition. We are not impressed with respondent’s contention, and, while relators’ petition for the writ could have been filed earlier, under the circumstances of this case we are not inclined to hold that the petition is barred by laches, and decline to do so.

The provisional rule in prohibition is made absolute.

All concur.

      . Compare: Walker Reorganized School District R-4 v. Flint et al., Mo.App., 303 S.W.2d 200, 205-206 [2], cited by respondent, holding that one school district can maintain an action against another school district for a judgment declaring that defendant district had become a part of plaintiff district by annexation. In so holding the court referred specifically to page 21 of the Spiking case (245 S.W.2d) and noted “ * * * that the Supreme Court has been careful to leave the door open for the decision that the cases in which individuals are endeavoring to attack the validity of an annexa-tion or a reorganization through a proceeding other than by quo warranto in the name of the State are not necessarily controlling where two school districts are claiming the same territory.” However, as to the individual parties in the Walker case, the court held (303 S.W.2d 1.c. 206 [3]) that the Spiking case was controlling and they had no right to question the validity of the purported annexation. See also: Reorganized School District R-I of Crawford County v. Reorganized School District R-III of Washington County, Mo.App., 360 S.W.2d 376, 378 [1-2].


author:
HENRY J. WESTHUES, Special Commissioner.
      PER CURIAM:

text:
    Juanita FORESTER, Irene Kenner, Leo Forester, and Ruth Harlen, Appellants, v. Joseph P. RODDY, Executor of the Purported Last Will and Testament of Alma Marie Tarella, Ethel Compton, Jeane Granger, Elvira Fianino, Alfred Chiantaretto, Mary Forester Margaretta Chiantaretto, John Mapes, Joseph Mapes, and John Brandon, Respondents.
    No. 52412.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 11, 1967.
    As Modified on Court’s Own Motion Sept. 11, 1967.
    Francis M. O’Brien, St. Louis, for appellants.
    Bernard Hollander, St. Louis, for respondents.
   HENRY J. WESTHUES, Special Commissioner.

This is an appeal from an order of the Circuit Court of the City of St. Louis refusing to set aside an order dismissing plaintiffs’ petition. Plaintiffs filed a petition on November 24, 1965, seeking to have a will set aside.

Section 473.083, V.A.M.S., provides that in will contest cases service of summons must be “secured and completed” within sixty days after the petition is filed. In this case plaintiffs did not complete service on all of the defendants until February 23, 1966. A motion to dismiss was filed on January 27, 1966. On April 6, 1966, the motion was sustained. On April 21, 1966, plaintiffs filed a motion to set aside the order of dismissal. The trial court held a hearing on that motion and on July 12, 1966, the motion was overruled. Plaintiffs appealed.

The estate of the testatrix consisted of real estate and personal property; hence, this court’s appellate jurisdiction.

Section 473.083 reads in part as follows :

“In any such action the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within sixty days after the petition is filed, the petition, on motion of any defendant, duly served upon the petitioner or his attorney of record, in the absence of a showing by the plaintiff of good cause for failure to secure and complete service, shall be dismissed by the circuit court at the cost of petitioner.”

The question before us is whether the trial court abused its discretion in refusing to set aside the order of dismissal. In other words, did plaintiffs show good cause for not having summons served on all of the defendants within sixty days after the petition was filed ?

We shall review the record in detail.

The alleged will in question, dated July 30, 1965, was executed by Alma Marie Tarella, who died on September 4, 1965. The petition alleged that the heirs of testatrix were Ethel Compton, a sister, Ruth Harlen, Irene Kenner, Juanita Forester, Jeane Granger, nieces, John Brandon, a nephew, and John Mapes and Joseph Mapes, half brothers of the testatrix.

The will was probated on September 17, 1965. On November 24, 1965, three of the nieces of testatrix and Leo Forester filed a petition to contest the will. All of the beneficiaries named in the will, except plaintiffs, were named as defendants.

The evidence on the motion to set aside the dismissal of the petition disclosed that a number of the defendants resided in the City of St. Louis, others in St. Charles County, and still others in St. Louis County, Missouri. Service of summons was had and completed on all of the defendants residing in the City of St. Louis and those in St. Charles County prior to the expiration of the sixty days. Service on defendants residing in St. Louis County, Missouri, Jeane Granger, Alfred Chiantaretto, Margaretta Chiantaretto, Joseph Mapes, and John Brandon was not had until after the expiration of the sixty days.

The record shows that on December 29, 1965, one of the defendants, Joseph P. Roddy, executor of the will, asked for and was granted until January 27, 1966, to plead. On January 24, 1966, defendant Joseph P. Roddy and other defendants filed a motion to make the petition more definite and certain. On January 27, 1966, these same defendants filed a motion to dismiss plaintiffs’' petition for failure to have completed service of summons on the defendants residing in St. Louis County, Missouri, within sixty days after the petition was filed.

These motions were presented to the trial court on February 15, 1966, and the following record entry was made:

“The Court having heard and duly considered the motion(s) of certain defendants to dismiss and to make more definite and certain, heretofore filed, and this day presented and submitted herein, upon the pleadings and argument adduced, and not now being sufficiently advised of and concerning the premises, takes times to consider thereof.”

The record shows that on February 16, 1966, the court placed a carbon copy of a letter addressed to plaintiffs’ counsel in the court file. It reads as follows:

“February 16, 1966.
“Mr. Francis O’Brien
Attorney at Law
706 Chestnut Street
St. Louis 1, Missouri
“Dear Mr. O’Brien:
“In re: Juanita Forester, et al., v. (77681 E) Joseph P. Roddy, etc.
“After reviewing the authorities cited by Mr. Hollander, I called you and stated that there is an absence of a showing by the plaintiff of good cause for failure to secure and complete service, and that this matter should be set down for a hearing in that regard.
“Yours very truly,
“DAM/eu
“CC: Mr. Bernard Hollander.”

A minute entry dated February 23, 1966, reads “Proof of Service Summons from St. Louis County filed.” The next entry, dated April 6, 1966, shows that the motion to dismiss was sustained. On April 21, 1966, plaintiffs filed a motion to set aside the dis- _ missal on the ground that the motion to dismiss was sustained without having permitted plaintiffs to offer evidence to show good cause for failure to secure service within sixty days. In the motion, plaintiffs stated that good cause did exist and the court was asked to permit plaintiffs to introduce evidence to support the motion. The court granted the request to hear evidence and Mr. Francis M. O’Brien, attorney for plaintiffs, testified with reference to his efforts to have defendants served with summons. He stated that after the petition was filed summonses were ordered issued to the sheriff of St. Charles County, to the sheriff of the City of St. Louis, and to the sheriff of St. Louis County; that the summons to the sheriff of the City of St. Louis was mailed by the clerk to the sheriff and service was completed within sixty days; that the summonses for the sheriff of St. Louis County and the sheriff of St. Charles County were mailed to his, O’Brien’s, office; that he, O’Brien, mailed the summonses to the St. Charles County sheriff and service was completed within sixty days; that he mailed the summonses for the defendants residing in St. Louis County to the sheriff of that county with the names and correct addresses of the defendants to he served; that he assumed the sheriff would make his returns to the clerk of the court in the City of St. Louis; that he heard nothing further until January 21 when he received notice of the motion to dismiss; that he checked with the sheriff of St. Louis County and learned he had not received the summonses; that he then checked with the post office in the City of St. Louis and found that a lot of Christmas mail was still in the post office and had not been “worked over.” This was after January 21. When the summonses were found on or about January 27, they again were mailed to the sheriff of St. Louis County and service was had.

When Mr. O’Brien concluded, the record shows the following to have occurred:

“MR. HOLLANDER: I have no questions for Mr. O’Brien.

“THE COURT: Well, I have one question. This motion to dismiss the petition was presented February 17th; right?

“MR. O’BRIEN: That’s right.

“THE COURT: And you stated that, I believe on the testimony, that it was only partially heard?

“MR. O’BRIEN: Yes. If you remember, the Court indicated that he would overrule this motion. And then you called me at a later time and thought that you would sustain it. And I said, ‘Well, now, if the Court without making any order on the motion will permit me to introduce testimony with reference to the good cause for failure to obtain service, I will do so.’

“THE COURT: Well, you and I have a different recollection on that, Mr. O’Brien. My recollection is that on February 17th it was submitted, and I don’t know what I indicated, but I do remember that I looked at the authority. And then I wrote you on February 16th. After reviewing the authorities cited by Mr. Hollander, I called you and stated that there is an absence of a showing by the plaintiff of good cause for failure to procure and complete service, and that this matter should he set down for a hearing in that regard. And I called you and told you that I thought that ought to be done promptly. Now, actually it was presented February 15th according to this date, filed February 17th, when I read the statute and looked at the authority. At that time I thought that there ought to be a showing of why service was not obtained, and I received absolutely no reply from that suggestion or telephone conversation. I believe I called you too.

“MR. HOLLANDER: You sent me a copy of a letter.” (Emphasis ours.)

Appellate courts hesitate to overturn an order of a trial court on matters resting within the discretion of such a court. 5A C.J.S. Appeal and Error § 1596, p. 73; 27 C.J.S. Dismissal and Nonsuit § 78, pp. 489-492; Venker v. Hyler, Mo., 352 S.W.2d 590, 1. c. 595 [3],

The dismissal of a case is a drastic action. It deprives the litigants of the opportunity to have their day in court on the merits.

In the case before us, we cannot say that plaintiffs’ attorney was unduly negligent in prosecuting his case. The will was probated on September 17, 1965. A suit to contest the will could have been filed at any time within nine months thereafter. The suit was filed on November 24, 1965. All defendants were served with summonses within sixty days except those living in St. Louis County. It was shown that proper summonses were mailed on December 22, 1965, to the sheriff of that county with the names and addresses of all defendants to be served. More than thirty days thereafter they still were lodged in the post office in St. Louis City. When the delay was discovered, the defendants were properly summoned less than six months after the will was probated. Even the time to file the suit had not expired.

The record shows that the trial judge and the plaintiffs’ attorney misunderstood each other as to what was to be done after the motions were presented to the court. All parties now agree that as the matter stood when the two motions, one to make more definite and certain and one to dismiss, were presented, the motion to dismiss should have been sustained unless good cause was shown. At the time the motions were presented, the trial court was in some doubt and therefore did not then rule. Note that in the letter to Mr. O’Brien the court stated, “ * * * this matter should be set down for a hearing in that regard.” As the record stood, no date or time had been or ever was fixed for a hearing. The judge was waiting for Mr. O’Brien to ask for a time to be heard and Mr. O’Brien was waiting for the court to fix the time.

As we view the situation, there was an unfortunate misunderstanding between counsel for plaintiffs and the trial judge. In the circumstances, justice prompts that the litigants should not bear the loss or suffer on that account.

Defendants cite the case of Cole v. Smith, Mo., 370 S.W.2d 307, as authority that the failure of the post-office department to transmit the summonses to the sheriff of St. Louis County is not good cause for failure of service. The situation in that case was quite different from the facts in this case. There, the attorney for contestants did not even examine the file in the probate court to determine the names of the interested parties. We do not have such a situation in this case. Surely the postal department can be expected to deliver mail deposited in the post office in the City of St. Louis to the sheriff of St. Louis County in much less time than thirty days.

It seems to us that in justice to the parties the order dismissing plaintiffs’ petition should have been set aside. The order of the trial court denying the motion to set aside the order of dismissal is hereby reversed and the cause remanded to the trial court.

It is so ordered.

PER CURIAM:

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the court.

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Carl Collins McCLANAHAN, Appellant.
    No. 52541.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.

      Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    R. H. McRoberts, Jr., St. Louis, for appellant Carl C. McClanahan. Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
   EAGER, Judge.

Appellant, whom we shall designate as defendant, was charged in two separate in-formations- filed on June 25, 1965, with the unlawful possession of marijuana (Cannabis sativa) a narcotic, and of amphetamine. In each information he was also charged with four prior felony convictions for each of which he was imprisoned. The prior convictions all involved motor vehicle offenses, with workhouse sentences imposed. Upon arraignment on the present charges, with privately employed counsel present, he pleaded not guilty to each charge. On October 18, 1965, he appeared with his counsel, withdrew his former pleas, and entered a plea of guilty to each charge. The Court accepted these pleas at that time, but deferred sentence pending a presen-tence investigation and an application for treatment in a federal hospital. At this time, the State’s attorney stated to the Court that defendant was, in each case, “found to have * * * in his possession” the prohibited substance; the Court asked defendant, “Is that true?” and the defendant responded in each case, “Yes, sir.”

On December 15, 1965, defendant appeared with Mr. Joseph Noskay of the Public Defender’s Office, who stated that defendant was represented by Mr. Lester Watson but, without further explanation, that he was “standing in his stead.” The State then recommended “ten years on the 18th of October,” (obviously meaning “from”), having already recommended concurrent sentences of ten years each at the time the pleas of guilty were made. The Court imposed a sentence of ten years in each case, “to run concurrently,” but granted probation for the purpose of treatment at a federal hospital, with the probation to be continued for four years after such treatment. On March 7, 1966, defendant filed a motion to vacate the judgment and sentence, which was denied on March 8, 1966, without a hearing. We need not note the grounds of that motion, for no appeal was taken and it was supplanted by a later motion filed on July 19, 1966, from the denial of which the present appeal was taken. In that motion defendant alleged: that at the time of sentencing he was forced to proceed with Mr. Noskay in the absence of his own counsel, in violation of his right to counsel of his own choice; that he had not been properly served with notice of the Court’s order on his former motion and that such order was made ex parte and without notice. This motion was supplemented by one filed on September 20, 1966 (entitled “Motion to Vacate Unlawful Judgment and Sentence — Withdraw Guilty Plea”), in which defendant also sought to question the legality of his arrest and of a search, alleged that his pleas were not voluntary, and that he did not have a “fair and speedy trial”; he also reasserted the fact that his own attorney was not present at the sentencing, and that he did not “request, want or need” Mr. Noskay.

On September 21, 1966, his motion to vacate was denied; in the context of this case the ruling clearly applied to both pending motions. At that time defendant’s request for leave to proceed in forma pauperis was granted and counsel was appointed, obviously for the purposes of an appeal. The original notice of appeal was filed late, but we granted leave to file a delayed notice of appeal under Rule 28.07, V.A.M.R., which was done. The appeal has been briefed and argued here by counsel and we proceed to consider the questions thus raised. The convictions in these two cases were so interlocked that we consider both as thus raised in the motions.

The first point made is that the possession of amphetamine hydrochloride was not a crime at the time in question, and that defendant’s conviction in Cause No. 1154-N (local number) was a violation of his constitutional rights; also, that even a plea of guilty to an indictment or information which charges no crime does not constitute a valid conviction. State v. Bonnie, Mo. App., 206 S.W.2d 989. Counsel relies on State v. Bridges, Mo., 398 S.W.2d 1, as establishing that no crime was charged or committed. That opinion is in nowise decisive in this case. There defendant was charged with the possession of amphetamine hydrochloride and the evidence showed the possession of that drug; the statute (supplemented by a list prepared by the Division of Health) proscribed amphetamine and certain of its derivatives, but amphetamine hydrochloride was not one of those listed. The judgment was reversed and the cause remanded in order that evidence might be taken to show whether amphetamine hydrochloride was a derivative or whether it was a compound actually containing amphetamine.

Our case is wholly different. In Cause No. 1154-N defendant was charged with the unlawful possession of amphetamine, as such. The possession of that drug was at all times prohibited by the statute. Defendant pleaded guilty to that charge, in the presence of his own counsel and, in addition to his formal plea, he admitted orally in open court the truth of the charge. He cannot now be heard to deny it; moreover, there is absolutely nothing in the transcript to show, authoritatively or otherwise, that the drug in defendant’s possession was amphetamine hydrochloride. The only ref-erences to it are (1) a statement in defendant’s first motion that in State v. Bridges, supra, the Court held that amphetamine hydrochloride was not on the list of proscribed drugs, and (2) a statement in the last motion that in State v. Bridges it was held that amphetamine was not so listed (which is not true). These statements are meaningless, and there is nothing whatever in the present case to support the point thus made. Defendant was adjudged guilty of the possession of amphetamine upon his voluntary plea and his admission, and he may not in this proceeding seek to read-judicate the issue. State v. Statler, Mo., 383 S.W.2d 534, and cases there cited. It is difficult to understand how the present information and the plea thereon have been misinterpreted.

The other point briefed is that the absence of defendant’s counsel at the time of sentencing was a violation of his right to counsel at a crucial stage of his cases, and that his constitutional rights were thus violated. We have not held that a defendant is always entitled to the presence of counsel, or of his own counsel, at the time of sentencing. In State v. Crow, Mo., 377 S.W.2d 129, cert. denied 85 S.Ct. 124, 379 U.S. 861, 13 L.Ed.2d 65, it appeared that counsel had withdrawn without notice prior to the time of allocution and sentence, and there was a controversy as to whether a motion for new trial had been mailed within time by defendant from the jail; defendant, present in person, stated that he wanted counsel and denied that he had discharged his prior counsel. The Court then proceeded with allocution and sentence in the absence of counsel. We reversed and remanded, holding that the factual issues should have been determined with counsel furnished to defendant, and that defendant was, under those circumstances and upon request, entitled to counsel. And see generally on the subject, Gadsden v. United States, 96 U.S. App.D.C. 162, 223 F.2d 627; Martin v. United States (CA 5), 182 F.2d 225, both cited by defendant’s counsel.

In a technical sense counsel was present here, but there is nothing to indicate that Mr. Noskay had any familiarity with the case, except that he knew that pleas of guilty had been entered. Mr. Nos-kay made no statement except the preliminary explanation of his presence. Defendant made no protest, but we consider that the circumstances require some relief. The Court imposed a sentence of ten years in each case and, after referred to the matter of probation (which was later revoked), stated: “These sentences are to run concurrently.” The record entries on the judgments and sentences confirm this by an express recitation in the judgment and sentence in Case No. 1154-N. On the date when defendant entered his pleas of guilty, namely, October 18, 1965, the Court accepted the pleas thereby adjudging a final conviction in each case, and the State recommended “ten years * * * on each charge, to run concurrently.” Sentence was not imposed for approximately two months thereafter. Section 546.480, RSMo 1959, V.A.M.S., is as follows: “When any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior conviction.” This section has been part of our statutory law for many years. In such instances the trial court has no power to impose concurrent sentences, for the statute is mandatory. State v. Harris, 336 Mo. 737, 81 S.W.2d 319. In that case, under rather similar circumstances, it was held that the judgments should be reversed, primarily because the statute quoted above had been ignored. See also Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47, 49; State v. Huff, 352 Mo. 1161, 181 S.W.2d 513. Here, as the matter now stands, defendant is subject to total imprisonment of twenty years, whereas the Court clearly intended a maximum of ten years, and the State had expressly recommended that. Since the attorney who was casually present did nothing to rectify this error, we hold that defendant is entitled to be returned to the trial court for the imposition of a new sentence in each case, with his own attorney present or, if he then has none and is an indigent, with an attorney to be appointed by the trial court. It is obvious here that prejudice resulted to the defendant in this instance from an inadvertence which was contributed to by the absence of counsel familiar with the case and prepared to act therein. The brief of defendant does not raise, as such, the right to a withdrawal of the pleas of guilty, and there is no basis whatever in this record for permitting any such action.

Some mention was made at the argument concerning a supposed lack of al-locution at sentencing. The records themselves recite allocution. The stenographic transcript does not. The point is immaterial. It has long been held in Missouri that this right (§ 546.570, RSMo 1959, V.A. M.S., as modified by § 546.580) is applicable “only after conviction upon a trial by jury, and does not apply to a sentence pronounced on a plea of guilty.” State v. Ashworth, 346 Mo. 869, 143 S.W.2d 279, 284, and authorities cited; State v. Kitchin, Mo., 300 S.W.2d 420, 425, cert. denied Kitchin v. State of Missouri, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429. Upon resentencing in these cases, the granting of allocution will rest in the Court’s discretion. We assume, however, that defendant’s counsel will then be heard on any pertinent matter which he may wish to raise.

The judgment and order of the trial court is reversed and the cause remanded for such further proceedings as are indicated herein.

All of the Judges concur.