State v. King

• Decision Date: 13 July 1964
• Docket Number: No. 50142,No. 1,50142,1
• Parties: STATE of Missouri, Respondent, v. Walter KING, Appellant
• Court: Missouri Supreme Court

Page 370

380 S.W.2d 370

STATE of Missouri, Respondent, v. Walter KING, Appellant.

No. 50142.

Supreme Court of Missouri, Division No. 1.

July 13, 1964.

Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.

Walter King, appellant, pro se.

DALTON, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis overruling appellant's motion under Supreme Court Rule 27.26, V.A.M.R. to set aside a prior conviction of appellant under the Habitual Criminal Act for the offense of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon. The conviction in question and the sentence of life imprisonment were entered on May 13, 1959. Without a hearing of evidence on the motion the trial court, on April 16, 1963, summarily overruled appellant's motion to vacate and set aside the prior conviction. Defendant filed a notice of appeal and was permitted to appeal as a poor person and a free transcript has been provided, but defendant's motion to assign counsel for the purposes of this appeal was denied.

Supreme Court Rule 27.26, in part, provides that: 'A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, * * * or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct the same. Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.' (Italics ours.)

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

The records show that the original case was instituted in the Circuit Court of the City of St. Louis by the filing of an indictment returned by a grand jury on February 12, 1959. The indictment charged defendant with the offense of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon. The charge was under the Habitual Criminal Act and four prior felony convictions were alleged. However, the cause was tried on a substitute information in lieu of the indictment. One of the four prior felony convictions alleged was for the offense of 'Armed Robbery' in the State of Michigan. While the indictment alleged that defendant was convicted of the said offense and was sentenced to imprisonment in the State Prison of Southern Michigan for a term of seven years and six months to fifteen years, and that he was discharged on July 7, 1952, after and upon lawful compliance with said sentence, there was no allegation in the indictment to the effect that the offense of 'Armed Robbery' in the State of Michigan was an offense which, if committed in the State of Missouri, would have been punishable under the laws of this State by imprisonment in the penitentiary. See Sec. 556.290 RSMo 1959. The substituted information remedied this defect.

The records further show that the original cause was tried, beginning on May 11, 1959, which date was prior to the effective date of the amendment of the Habitual Criminal Act by Laws of Missouri, 1959, Senate Bill No. 117, approved June 15, 1959. The issue as to whether the defendant had been previously convicted of a prior felony was therefore submitted to the jury and the jury by its verdict found defendant guilty of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, as charged, and further found that defendant had been previously convicted of a felony and the jury assessed the defendant's punishment at imprisonment in the state penitentiary for the remainder of his natural life.

Defendant was represented during the trial by court-appointed counsel and, after verdict, a motion for a new trial was duly filed and by the Court was considered and overruled. Notice of appeal was filed and a free transcript was provided.

On appeal to this Court all matters properly raised in the motion for a new trial were duly considered, as well as that part of the record which the Court considers independently of the motion for a new trial. The judgment of the trial court was affirmed in an opinion filed. See State v. King, Mo.Sup., 334 S.W.2d 34. A motion for rehearing was subsequently filed and denied by the Court on April 11, 1960.

Appellant's first point on the present appeal is that 'the trial court was without authority or jurisdiction to proceed to a judgment of conviction and sentence, for the reason that said court proceeded upon a Prosecuting Attorney's information which was substituted for an indictment after the jury had been sworn.' Appellant states that such substitution was made without leave of the Court; that the indictment had not been held insufficient or defective in any particular whatever; and that substitution was not authorized under Sec. 545.300 RSMo 1949. Appellant further states that the indictment was void ab initio, but he states no facts to support that conclusion. In a subdivision under appellant's first point he further states that Supreme Court Rule 24.02, which purports to give the State authority to substitute an information for an indictment without the indictment being shown to be insufficient, allows the State to evade the provisions of Sec. 545.300, supra, and the rule is, therefore, unconstitutional and void in that it violates Art. V, Sec. 5 of the Constitution of Missouri 1945, V.A.M.S. by depriving defendant of his substantive right to prevent such a substitution after the jury was sworn. He further insists that Supreme Court Rule 24.02 nullifies prior Supreme Court decisions cited in his brief and that Art. V, Sec. 5, under which Rule 24.02 was adopted, denies due process and equal protection of the law guaranteed to defendant by other sections of the State Constitution and the Fourteenth Amendment to the Constitution of the United States. He also insists that Art. V, Sec. 5 is an unlawful delegation of the Legislative power to the Supreme Court of Missouri and it is, therefore, an invasion upon the Legislative branch of the government in violation of Art. II, Sec. 1 of the Constitution of Missouri 1945. We are of the opinion that these several assignments present only issues of law and factual matters which are easily determinable upon a review of the files and records of the Court in the original case. Issues of law and matters which may be disposed of from a review of the files and records of the court in the original case may be summarily disposed of without a hearing. See State v. Jarrett, Mo.Sup., 317 S.W.2d 368, 369. And see cases decided under Title 28 U.S.C.A. Sec. 2255, a Federal Rule similar to the substance of Rule 27.26, such as Keto v. United States, 8th Circuit, 189 F.2d 247, 251 and O'Malley v. United States, 6th Circuit, 285 F.2d 733, 735.

The substituted information appears from the transcript in the original case and the charge made against defendant is the same as in the mentioned indictment, except that in the information the allegations with reference to the Michigan offense were modified as heretofore stated. The transcript on this appeal further shows that a Court record was made of the substitution of the information for the indictment and the transcript in the original case shows that the change was made by request of the State and with the consent of the Court. The amendment could not have been prejudicial to the defendant since the State was only required to prove one of the several prior felony convictions to bring the case within the Habitual Criminal Act. Three other prior felony convictions were properly alleged, but the Michigan conviction was insufficient in the respects stated. No prejudice appears to the defendant by reason of the substitution of the information for the indictment, because 'the Michigan conviction was never referred to in the evidence or in the instructions' (State v. King, supra, 334 S.W.2d 34, 37), since the trial court outside the hearing of the jury sustained defendant's objections to the admission of the documents by which the State sought to prove the Michigan conviction. Further, the allegation and proof of prior convictions would only affect the extent of punishment in the event of conviction.

As to the validity of Supreme Court Rule 24.02, the Constitution of Missouri 1945, Sec. 5, Art. V, expressly provides that the Supreme Court may establish rules of practice and procedure for all Courts, but...